SECTARIANISM AND TRANSITIONAL JUSTICE IN SYRIA: RESISTING INTERNATIONAL TRIALS

SECTARIANISM AND TRANSITIONAL JUSTICE IN SYRIA: RESISTING INTERNATIONAL TRIALS ALEX SCHANK* ABSTRACT Speculation has swarmed regarding prospects for t...
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SECTARIANISM AND TRANSITIONAL JUSTICE IN SYRIA: RESISTING INTERNATIONAL TRIALS ALEX SCHANK* ABSTRACT Speculation has swarmed regarding prospects for transitional justice in Syria, and international actors have been particularly insistent on the need for international criminal courts to hold the Asad regime and opposition militant groups accountable for the human rights violations and war crimes they are committing on a near daily basis. These early calls for accountability in Syria often presuppose that the conflict is sectarian in nature, rendering the Syrians hopelessly divided by religion and ethnicity and in need of international assistance to bring about justice and reconciliation in their society. The historical experiences of Iraq and Lebanon caution against such a presupposition. They demonstrate how the fusing of sectarian discourse and international justice schemes has politicized international trials and entrenched ethno-religious divisions. In the Syrian context, this fusing obscures the political motivations of international actors, plays into the hands of the Asad regime’s sectarian narrative, and ignores the non-violent democratic activism that underlies the Syrian uprising. While the appropriate transitional justice mechanism for Syria is a decision for Syrians to make, this Note posits that truth-telling informed by religion can play a role in fostering reconciliation and accountable governance in the Syria of tomorrow. I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. A LEGACY OF POLITICIZED INTERNATIONAL CRIMINAL TRIALS IN THE ARAB WORLD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. Lebanon: Entrenching Sectarianism Through International Trials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Iraq: Imposing Foreign Sectarian Visions on Society . . . . . . . III. SECTARIAN ASSUMPTIONS AND POLITICAL MOTIVATIONS UNDERLIE THE CALL FOR INTERNATIONAL CRIMINAL TRIALS FOR SYRIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. PROSPECTS FOR TRANSITIONAL JUSTICE IN SYRIA: TRUTH COMMISSIONS AND RELIGIOUSLY INSPIRED RECONCILIATION . . . . . V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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* Georgetown University Law Center, J.D., expected 2014; Georgetown University, M.A.A.S., expected 2014. Special thanks to Professors Neha Sheth and Max Rettig, and to all my friends and family members who reviewed this Note with care. © 2014, Alex Schank.

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I.

INTRODUCTION

Mass atrocities are being committed in Syria today. Since the start of the uprising in March 2011, over 100,000 Syrians have been killed in the conflict,1 five million have been internally displaced,2 and more than two million have been made refugees in neighboring countries.3 The United Nations and human rights groups have accused the regime of President Bashar al-Asad of committing grave human rights violations in its suppression of the uprising in Syria, including arbitrary arrests of protestors and civilians, summary executions, extrajudicial killings, torture of detainees, and indiscriminate and deliberate air strikes against civilians, which rise to the level of crimes against humanity and war crimes.4 Additionally, the rebels engaged in armed conflict with the regime are accused of committing summary executions,5 attacks on civilian populations,6 torture, and hostage taking.7

1. Syria Death Toll Now Above 100,000, Says UN Chief Ban, BBC NEWS, Jul. 25, 2013, http:// www.bbc.co.uk/news/world-middle-east-23455760. 2. Albert Aji, Number of Internally Displaced in Syria Hits 5 Million, UN Says, HUFFINGTON POST, Sept. 2, 2013, http://www.huffingtonpost.com/2013/09/02/internally-displaced-syria_n_ 3855563.html. 3. Jethro Mullen, Number of Syrian Refugees Rises Above 2 Million, U.N. Agency Says, CNN, Sept. 4, 2013, http://edition.cnn.com/2013/09/03/world/meast/syria-refugees-unhcr/. 4. UN Implicates Bashar al-Assad in Syria War Crimes, BBC NEWS, Dec. 2, 2013, http:// www.bbc.co.uk/news/world-middle-east-25189834 (discussing the UN’s direct implication of the Syrian president in war crimes and crimes against humanity); Death from the Skies: Deliberate and Indiscriminate Air Strikes on Civilians, HUM. RTS. WATCH, Apr. 10, 2013, http://www.hrw.org/news/ 2013/04/10/syria-aerial-attacks-strike-civilians; ‘They Burned My Heart’, HUM. RTS. WATCH, May 3, 2012, http://www.hrw.org/node/106869/section/3; ‘In Cold Blood’, HUM. RTS. WATCH, Apr. 10, 2012, http://www.hrw.org/node/106346/section/2; Torture Archipelago, HUM. RTS. WATCH, July 3, 2012, http://www.hrw.org/node/108415/section/2; ‘By All Means Necessary!’, HUM. RTS. WATCH, Dec. 16, 2011, http://www.hrw.org/node/103558/section/3. The United States has also accused the regime of conducting a chemical attack on civilian populations in August 2013. Josh Levs, U.S. on Syria Chemical Attack: What’s the Evidence?, CNN, Sept. 9, 2013, http://edition.cnn.com/2013/09/09/world/syria-us-evidence-chemical-weapons-attack/. Russia claims the rebels carried out the attack. Russia Will Give UN ‘Proof’ of Syria Rebel Chemical Use, BBC NEWS, Sept. 18, 2013, http://www.bbc.co.uk/news/world-middle-east-24140475. 5. Karin Laub, Rights Groups: Syrian Rebels Often Kill Captives, ASSOCIATED PRESS, Mar. 14, 2013, http://bigstory.ap.org/article/rights-groups-syrian-rebels-often-kill-captives. 6. Laura Smith-Spark & Saad Abedine, Syria Rebel Fighters Guilty of Serious Abuses, Says Human Rights Watch, CNN, Oct. 11, 2013, http://edition.cnn.com/2013/10/11/world/meast/syria-civilwar/. 7. U.N. Human Rights Council, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, U.N. Doc. A/HRC/24/46 (Aug. 16, 2013).

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Such atrocities are prompting increasing calls for transitional justice mechanisms to hold perpetrators to account, bring an end to the bloodshed, and kick-start the process of reconciliation.8 In particular, analysts and officials are proposing international trials as the best mechanism to realize justice in Syria. U.N. High Commissioner for Human Rights Navi Pillay, for example, supports a Security Council referral of human rights violations in Syria to the International Criminal Court (ICC),9 and the U.N. Human Rights Council’s independent commission of inquiry on Syria released a report to Pillay that includes a confidential list of individuals who could be charged with crimes against humanity.10 Although several analysts have incorrectly predicted a speedy revolution and failed to account for the Asad regime’s ability to hold onto power,11 the mere prospect of the regime’s fall has spurred much reflection on how transition will proceed on the “day after.”12 Of particular concern to those thinking about transitional justice in Syria is the apparently increasingly sectarian nature of the conflict: with Alawite communities backing the regime, Sunnis composing the opposition, and Christians and Kurds somewhere in between. The U.N. commission of inquiry has described the conflict as “overtly sectarian,”13 and analysts suggest that U.S. policy for present engagement with the opposition and future engagement with a transitional government should be crafted around the sectarian dimensions of Syrian

8. Action Group for Syria, Geneva Communique 4 (June 30, 2012), available at http:// www.un.org/News/dh/infocus/Syria/FinalCommuniqueActionGroupforSyria.pdf (calling for “[a]ccountability for acts committed during the present conflict” and “a comprehensive package for transitional justice, including compensation or rehabilitation for victims of the present conflict, steps towards national reconciliation and forgiveness”). 9. Nick Cumming-Bruce, U.N. Rights Officials Urge Syria War Crimes Charges, N.Y. TIMES, Feb. 18, 2013, http://www.nytimes.com/2013/02/19/world/middleeast/un-rights-panel-saysviolence-in-syria-is-mounting.html?pagewanted⫽all. 10. David Arnold, UN Commission Cites Human Rights Abuses by Syria Government, Rebels, VOICE OF AM., Apr. 9, 2013, http://www.voanews.com/articleprintview/1635601.html. 11. Bassam Haddad, Perpetual Recalculation: Getting Syria Wrong Two Years On, JADALIYYA, Mar. 18, 2013, http://www.jadaliyya.com/pages/index/10674/perpetual-recalculation_gettingsyria-wrong-two-ye. 12. See, e.g., Pub. Int’l Law & Pol’y Group, Planning for Syria’s ‘Day After’—Security, Rule of Law & Democracy (Mar. 2012), available at http://publicinternationallawandpolicygroup.org/wpcontent/uploads/2012/03/PILPG-Report-Planning-for-Syrias-Day-After.pdf. 13. U.N. High Comm’r for Human Rights, Indep. Int’l Comm. of Inquiry on the Syrian Arab Republic, Periodic Update (Dec. 20, 2012), available at http://www.ohchr.org/Documents/ Countries/SY/ColSyriaDecember2012.pdf.

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society.14 This Note aims to assess these calls for the beginning of transitional justice in Syria from a critical perspective informed by developments in the Arab world in recent years. Part II asserts that international involvement in criminal trials in Lebanon and Iraq has not only failed to promote justice and reconciliation, but has in fact exacerbated and entrenched sectarian tensions. Such trials lack legitimacy in the eyes of many Lebanese and Iraqis who see the trials as imposed by hegemonic Western powers at the helm of international institutions. Furthermore, international trials often fail to take into account domestic legal structures and fall victim to politicization, betraying their supposedly neutral application of the law in divided societies struggling to handle accountability. Part III argues that an international criminal tribunal would also be destructive in the Syrian context because it is based on a discourse that creates and entrenches sectarianism by presuming that the transition in Syria will necessarily be determined by the ethno-religious make-up of the Syrian people. Such a self-fulfilling prophecy cries out for an international savior such as the ICC. Yet the dangers of this discourse are many. First, it obscures the geo-political power dynamics motivating international actors (namely Western opposition to the Syria-IranHizballah axis). Second, it plays into the hands of the Asad regime’s narrative of sectarianism. Lastly, it ignores the non-violent democratic activism that spurred the revolution in the first place and continues to this day. Finally, Part IV posits that real transitional justice in Syria will stem from mechanisms that Syrians choose for themselves. It also asserts that religion need not play a socially divisive role, but can in fact help reconcile communities that have been divided by discourses of sectarianism. The Note concludes that there is hope yet for realizing accountable governance, social justice, and human rights and dignity in Syria, but warns that international direction of the process could undermine these goals.

14. See, e.g., Frederic C. Hof & Alex Simon, Sectarian Violence in Syria’s Civil War: Causes, Consequences, and Recommendations for Mitigation, CTR. FOR THE PREVENTION OF GENOCIDE, U.S. HOLOCAUST MEM’L MUSEUM (2013), available at http://www.ushmm.org/genocide/pdf/syriareport.pdf.

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II.

A LEGACY OF POLITICIZED INTERNATIONAL CRIMINAL TRIALS IN THE ARAB WORLD

The justification for international criminal trials as a mechanism of transitional justice is, in short, that they promote justice by holding perpetrators of human rights violations and violations of the law of armed conflict accountable and help victims move on—promoting elements of both retributive and restorative justice.15 Such trials typically take place in international fora, including ad hoc tribunals and the ICC.16 Often, however, international influence permeates national trials, and tribunals may be hybrid in nature, incorporating both international and domestic structures and personnel.17 Several scholars are skeptical of the degree to which such international criminal trials realize justice or reconciliation. Eric Stover and Harvey Weinstein, for example, assert that while criminal trials promote retributive justice, they can divide multi-ethnic communities. Meanwhile, many survivors of mass atrocity view justice not as a verdict from The Hague, but as a host of remedies that are integral to reconciliation, including: apologies, reparations, return of stolen property, location of missing bodies, meaningful employment and education, and recovery help for victims of trauma.18 This “ecological model” of social reconstruction, as developed by Stover and Weinstein, does not rule out trials altogether, but rather views trials as just one part of the puzzle, and a possibly destabilizing one at that.

15. See generally MARK J. FINDLAY & RALPH HENHAM, TRANSFORMING INTERNATIONAL CRIMINAL JUSTICE: RETRIBUTIVE AND RESTORATIVE JUSTICE IN THE TRIAL PROCESS (2012). The question of holding trials must be seen in light of the classical dilemma in transitional justice between vengeance and forgiveness: Too much justice in the form of prosecutions for war crimes threatens to keep societies stuck in the past and divided by a spirit of vengeance, while forward-looking, forgiveness-oriented mechanisms by themselves may leave victims outraged over crimes gone unpunished. MARTHA MINOW, BETWEEN VENGEANCE AND FORGIVENESS: FACING HISTORY AFTER GENOCIDE AND MASS VIOLENCE 8 (1998). 16. Judge Phillippe Kirsch Q.C., The International Criminal Court: From Rome to Kampala, 43 J. MARSHALL L. REV. 515, 515 (2010) (noting that while the ICC was intended to be a permanent institution to dispense with creating a special tribunal for every instance of mass violence, war crimes, and crimes against humanity, national systems and ad hoc courts have continued to play a role in accountability efforts). 17. Laura A. Dickinson, The Promise of Hybrid Courts, 97 AM. J. INT’L L. 295, 301 (2003) (arguing that the mixed nature of hybrid courts lends legitimacy to trial proceedings that otherwise in an international tribunal would be too far removed from the victims, or in a domestic court could be tainted by former oppressive regimes). 18. Eric Stover & Harvey M. Weinstein, Conclusion: A Common Objective, a Universe of Alternatives, in MY NEIGHBOR, MY ENEMY: JUSTICE AND COMMUNITY IN THE AFTERMATH OF MASS ATROCITY 323 (Eric Stover & Harvey M. Weinstein eds., 2004).

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International criminal trials have the potential to threaten local agency in determining how the agreed upon transitional justice mechanism(s) will be employed.19 Recognizing this threat, even proponents of the ICC have called for reforms that would help the court facilitate domestic initiatives, rather than encroach on them.20 Yet in cases where international action lacks legitimacy in the eyes of the affected population, the international trial loses much of its efficacy, and cooperation begins to vanish.21 In his trial at the International Criminal Tribunal for the former Yugoslavia (ICTY), for example, Slobodan Milosevic refused to recognize the legitimacy of the tribunal and instead used the proceedings as a podium to tell his version of the

19. Roozbeh B. Baker, for instance, argues that whatever transitional justice mechanism is chosen, legitimacy depends on the existence of a “pact” made between institutions at the early stages of the transition. In the case of Serbia, trials in the Special Courts (which answer to the International Criminal Tribunal for the former Yugoslavia and the international community, not Serbians) failed because the transitional justice pact negotiated between the security services and the Serbian government to eliminate the influence of criminal groups in the country did not impact the Special Courts, which were able to pursue their own objectives. Roozbeh B. Baker, Towards A New Transitional Justice Model: Assessing the Serbian Case, 11 SAN DIEGO INT’L L.J. 171, 221 (2009). 20. E.g., Elizabeth B. Ludwin King, Does Justice Always Require Prosecution? The International Criminal Court and Transitional Justice Measures, 45 GEO. WASH. INT’L L. REV. 85 (2013) (arguing that the ICC prosecutor should defer prosecution if locals have a plan that holistically incorporates investigative, retributive, and reparative elements); Jeremy Sarkin, Enhancing the Legitimacy, Status, and Role of the International Criminal Court Globally by Using Transitional Justice and Restorative Justice Strategies, 6 INTERDISC. J. HUM. RTS. L. 83 (2012) (positing that the ICC should play a larger role in restorative justice and truth and reconciliation commissions by releasing information it has that is not protected or privileged). 21. This dynamic is apparent in the evaporating support among African countries for the ICC. Sudanese President Omar al-Bashir has boldly flaunted the ICC indictment and arrest warrant for crimes his regime allegedly committed in Darfur. Al-Bashir’s lack of cooperation with the ICC has been enabled by the argument of several African states in recent years that the ICC is selectively applying justice to African countries, interfering with Sudan’s national sovereignty by indicting a head of state, and hindering progress with peace agreements related to important issues like South Sudan. Gwen P. Barnes, The International Criminal Court’s Ineffective Enforcement Mechanisms: The Indictment of President Omar al Bashir, 34 FORDHAM INT’L L.J. 1584, 1606 (2011). ICC prosecution of al-Bashir will likely be an ineffective transitional justice mechanism for the people of Darfur because of the small number of cases the court can handle, the years it takes to complete, and the unlikelihood of justice in The Hague reaching the destitute people of Darfur. Brian A. Kritz & Jacqueline Wilson, No Transitional Justice Without Transition: Darfur—A Case Study, 19 MICH. ST. J. INT’L L. 475, 485-86 (2011). Contra Rachel Bohlen, Questioning Authority: A Case for the International Criminal Court’s Prosecution of the Current Sudanese President, Omar al-Bashir, 42 GEO. WASH. INT’L L. REV. 687, 712 (2010) (arguing that the “ICC must pursue its case against al-Bashir to show the international community that there is a solution when high ranking officials commit these heinous violations of international humanitarian law”).

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events in the Balkans in the 1990s for the consumption of a sympathetic Serbian audience at home.22 Legitimacy is particularly lacking where ethno-religious societal divisions prevent the formation of a cohesive national narrative on justice and reconciliation that the international trial can latch onto.23 It is also called into question where the international trial itself foments social division by holding only one side of a particular conflict accountable24 or by using procedures out of sync with domestic legal traditions.25 At the end of the day, local citizens must have a stake in transitional justice if it is to help society heal from mass atrocity,26 and international action must not have a silencing effect. Two case studies from the Arab world are particularly relevant to the prospect of international trials for Syria. Both Lebanon and Iraq in

22. Natasa Kandic, The ICTY Trials and Transitional Justice in Former Yugoslavia, 38 CORNELL INT’L L.J. 789, 791 (2005). 23. Stuart Ford contends that the legitimacy of international criminal courts largely depends on whether or not dominant internal narratives are in sync with the establishment of the court. If there is no dominant internal narrative, but rather strong divisions among ethno-religious groups prevail, perceived legitimacy is a negative sum game, and an international criminal trial will not be a successful tool of transitional justice. Stuart Ford, A Social Psychology Model of the Perceived Legitimacy of International Criminal Courts: Implications for the Success of Transitional Justice Mechanisms, 45 VAND. J. TRANSNAT’L L. 405, 462-72 (2012). 24. Cecile Aptel, Closing the U.N. International Criminal Tribunal for Rwanda: Completion Strategy and Residual Issues, 14 NEW ENG. J. INT’L & COMP. L. 169, 187 (2008) (noting that the International Criminal Tribunal for Rwanda (ICTR) has been criticized for being one-sided and failing to indict any members of the ruling Rwandan Patriotic Front for war crimes; additionally, the ICTR has adopted a strategy of only targeting those with the highest level of responsibility for human rights violations, making it rather irrelevant as a justice-seeking mechanism for most Rwandans). 25. For example, the ICTY has created community tension in Bosnia by appealing more to the United Nations and NATO donors than it does to local needs. The foreign adversarial common law system it imposed has led to mistrust of witnesses and victims of the war, who face danger leaving their homes and participating in the proceedings. The ICTY has also ruled out other potential transitional justice mechanisms. For example, the ICTY, UN, and other international organizations refused to back a truth commission proposed by Bosnians in 2001 for fear that its activities would interfere with ICTY prosecutions and undermine the court’s authority. (The Bosnian government is compelled to follow ICTY’s directives to maintain international funding.) Meanwhile, Serb nationalist groups continue to seek to expose the court as a tool of the West. Jamie Rowen, Social Reality and Philosophical Ideals in Transitional Justice, 7 CARDOZO PUB. L. POL’Y & ETHICS J. 93, 112 (2008). 26. See Brendan Leanos, Cooperative Justice: Understanding the Future of the International Criminal Court Through Its Involvement in Libya, 80 FORDHAM L. REV. 2267, 2303 (2012) (arguing that a hybrid trial is preferable in Libya to an exercise of ICC jurisdiction over the cases of former regime officials, because such an arrangement would help Libyan society heal by developing local capacities to hold human rights violators accountable and providing resources to a fledgling judiciary).

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recent years have had trials directed largely by international actors. Both countries are neighbors to Syria and both have undergone national disasters and limited recoveries haunted by the specter of sectarianism—prompting Syrians to reflect on their own experiences in a regional context.27 Policymakers and analysts are also viewing prospects for accountability in Syria in light of regional developments, particularly the Iraqi case.28 Some have even factored Lebanese and Iraqi criminal trial procedures into early blueprints for transitional justice in Syria.29 While this Note accepts the relevance of the comparison to Lebanon and Iraq, it examines the specific power dynamics that lead to the creation of internationally-led transitional justice mechanisms in each case.30 A. Lebanon: Entrenching Sectarianism Through International Trials The Special Tribunal for Lebanon (STL) was created in 2007 by the U.N. Security Council to prosecute those responsible for the assassination of former Prime Minister Rafiq al-Hariri in February 2005.31 The STL was envisioned as a tribunal “of an international character based on the highest standards of criminal justice,”32 but it was designed to

27. Rising sectarian voices in Syria have led Syrians to consider the disastrous sectarian experiences of neighboring Lebanon and Iraq. See generally Int’l Crisis Grp., Syria’s Mutating Conflict, Middle East Report no. 28 (2012). Comparison to the conflicts in Iraq and Lebanon must be couched, however, in the Syrian uprising’s unique context as a broad-based popular movement stressing cross-communal solidarity and national revival. Id. at 17. 28. See, e.g., Orde F. Kittrie & Gregory D. Koblentz, Holding Assad Accountable, THE NAT’L INT., Sept. 6, 2013, http://nationalinterest.org/commentary/holding-assad-accountable-9002 (comparing prosecution of former Iraqi regime officials responsible for chemical attacks with preparations for holding Syrians accountable). 29. See Chautauqua Blueprint for a Statute for a Syrian Extraordinary Tribunal to Prosecute Atrocity Crimes, PUB. INT’L LAW & POL’Y GROUP (Aug. 27, 2013), available at http://publicinternational lawandpolicygroup.org/wp-content/uploads/2013/09/Chautauqua-Blueprint1.pdf. 30. The creation of the International Criminal Tribunal for Rwanda represents a telling example of how international politics directly shapes transitional justice mechanisms. Powerful nations, among them the United States, refused to recognize the mass slaughter of Rwandans as a genocide while the killings were ongoing, partially out of concern for getting soldiers involved in a bloody conflict abroad. Thereafter they proposed the tribunal largely out of a sense of guilt for the international community’s silence. Alison Des Forges & Timothy Longman, Legal Responses to Genocide in Rwanda, in MY NEIGHBOR, MY ENEMY: JUSTICE AND COMMUNITY IN THE AFTERMATH OF MASS ATROCITY 49 (Eric Stover & Harvey M. Weinstein eds., 2004). 31. S.C. Res. 1757, U.N. Doc. S/RES/1757 (May 30, 2007). 32. S.C. Res. 1664, ¶ 1, U.N. Doc. S/RES/1664 (Mar. 29, 2006).

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apply Lebanese anti-terrorism law, not international law.33 The STL was controversial from the beginning.34 Prime Minister Fuad Siniora signed an agreement in 2007 implementing the STL, but the agreement was never ratified by the Lebanese parliament due to the refusal of the speaker of parliament to convene a meeting on the issue following the withdrawal of Shi’i ministers allied with Hizballah from the Siniora government.35 Consequently, Siniora urged the Security Council to make a binding decision under its Chapter VII authority to create the tribunal.36 This decision led to the perception among many Lebanese that the STL was not only a foreign imposition, but a politicized exercise in selective justice. After all, the international community had not bothered to create a tribunal during Lebanon’s crippling civil war from 1975 to 1990 or the 2006 war with Israel when human rights violations were far more grave than the assassination of a single man and his posse.37 Indeed, international political considerations were directly responsible for the STL’s creation. As an influential international actor with a permanent seat on the Security Council, the United States strongly backed the STL’s formation based on its foreign policy interests in both countering the Syria-Iran-Hizballah axis and reducing Syrian influence in Lebanon by pointing the finger at Syrian officials for Hariri’s

33. See Janice Yun, Note, Special Tribunal for Lebanon: A Tribunal of an International Character Devoid of International Law, 7 SANTA CLARA J. INT’L L. 181, 195 (2010) (arguing that the STL’s lack of substantive international law undermines the consistent application of the law and does not reflect the highest international standards of criminal justice). 34. Choucri Sader, A Lebanese Perspective on the Special Tribunal for Lebanon, 5 J. INT’L CRIM. JUST. 1083, 1084 (2007) (noting that opponents of the agreement to establish the Special Tribunal argued on constitutional grounds that the tribunal would impermissibly prejudice Lebanese sovereignty). 35. Kareem Shaheen, STL Primer: How the Court Came to Be, THE DAILY STAR, Jan. 8, 2014, http://www.dailystar.com.lb/News/Lebanon-News/2014/Jan-08/243379-stl-primer-how-the-courtcame-to-be.ashx#axzz2qn6aNNtB. 36. Id. 37. See Melia Amal Bouhabib, Comment, Power and Perception: The Special Tribunal for Lebanon, 3 BERKELEY J. MIDDLE E. & ISLAMIC L. 173, 201-02 (2010) (describing the perception that “the selection of one man’s death as the impetus for international concern seems hollow and overtly political”). But see Nadim Shehadi & Elizabeth Wilmshurst, The Special Tribunal for Lebanon: The UN on Trial?, 2007 CHATHAM HOUSE 1 (July 2007) (“Failing to set up the Tribunal would have been interpreted as a green light for assassinations and terrorism to continue with impunity in Lebanon. Any political cost involved in setting up the Tribunal will be offset by the higher cost of not doing so.”).

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assassination.38 The result of the STL’s imposition on Lebanon was disastrous from the standpoint of social reconciliation. Lebanon’s political conflict between the March 8 coalition (of which Hizballah is a member) and the March 14 alliance intensified as the STL pushed political actors into even more rigid camps— either for resistance to U.S.-Israeli ambitions or against Syria’s grip on Lebanon.39 Violent clashes ensued, leaving eighty-one people dead.40 That the STL had the effect of such destructive politicization is ironic given that the original justification for creating the STL (rather than tasking a Lebanese court with investigating Hariri’s assassination) was to keep political influence from infecting the Lebanese judiciary.41 Instead, the political virus assumed global geo-strategic proportions with the STL. The STL suffers from other legal and logistical difficulties that have only worsened the political crisis in Lebanon’s sectarian system. Commentators criticize the STL for ignorance of domestic political dynamics, weak outreach to the public, and leaked interviews and recordings that have hurt its public image.42 Regarding application of the law, the STL’s novel mandate to conduct trials of suspects in absentia—the first instance of such a mandate in an international court since the Nuremberg Trials—arguably conflicts with the due process right of the accused to a retrial, given the short-term scope of the STL’s existence as a tribunal and the likelihood that suspects in absentia will only be

38. See John Cerone, The Politics of International Justice-U.S. Policy and the Legitimacy of the Special Tribunal for Lebanon, 40 DENV. J. INT’L L. & POL’Y 44, 45 (2012) (noting that U.S. support for international criminal trials has not been consistent, but rather depends on foreign policy interests). 39. Salem Hikmat Nasser, International Law and Politics: International Criminal Courts and Judgments: The Case of the Special Tribunal for Lebanon, 15 GONZ. J. INT’L L. 1 (2012) (The STL was “knowingly or not, taking part in the struggle between opposing projects for the Middle East and international politics. One of these projects saw Lebanon normalizing relations with Israel and, therefore, coming entirely within the realm of US influence. For this to happen, Syria’s grip on Lebanon needed to be broken. The other project viewed Lebanon as a bastion of resistance to US-Israeli ambitions and, militarily speaking, the most successful in the long lasting history of conflicts”). 40. Peace for a While, THE ECONOMIST, May 22, 2008, http://www.economist.com/node/ 11412809. 41. Thomas Avery, International Justice and National Stability in Lebanon, HUM. RTS. BRIEF, Spring 2011, at 721. 42. Nidal Nabil Jurdi, Falling Between the Cracks: The Special Tribunal for Lebanon’s Jurisdictional Gaps As Obstacles to Achieving Justice and Public Legitimacy, 17 U.C. DAVIS J. INT’L L. & POL’Y 253, 255-56 (2011).

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apprehended several years into the future.43 This conflict between international standards and the STL’s setup undermines the tribunal’s legitimacy further. Moreover, in absentia trials promote a historiographical bias in favor of predetermining the guilt of Syrian officials for Hariri’s assassination.44 The STL must also be seen in the context of Lebanon’s brutal history of civil war, lingering sectarianism, and obstacles to inter-communal reconciliation. The country emerged from the civil war with the 1989 Ta’if Accords, which redistributed political power along confessional lines, thereby reinforcing sectarianism, and arguably only aimed at reconciliation between elites and warlords of the various confessional groups.45 Meanwhile, a 1991 amnesty pardoned warlords for human rights violations and buried public discussion and reflection on what transpired during the civil war.46 Despite these difficulties, Lebanese civil society has played an important role in remembrance of the civil war,47 as have youth.48 Sectarian divides are not insurmountable through a process of reconciliation,49 but international interventions such as the STL, which are perceived to apply justice selectively and along lines shaped by sectarian politics, hold back (and often reverse) such reconciliation. B.

Iraq: Imposing Foreign Sectarian Visions on Society

On December 10, 2003, the Iraqi Governing Council, which had been created by the U.S.-led Coalition Provisional Authority, estab-

43. Chris Jenks, Notice Otherwise Given: Will in Absentia Trials at the Special Tribunal for Lebanon Violate Human Rights?, 33 FORDHAM INT’L L.J. 57, 62 (2009). 44. Bjorn Elberling, The Next Step in History-Writing Through Criminal Law: Exactly How Tailor-Made is the Special Tribunal for Lebanon?, 21 LEIDEN J. INT’L L. 529, 538 (2008) (“Article 22 is based on an assumption that defendants and their home states will be colluding in refusing to co-operate with the Tribunal. From this assumption, of course, it is but a small step to a further underlying assumption, namely that of state involvement already in the crimes under review.”). 45. Faten Ghosn & Amal Khoury, Lebanon After the Civil War: Peace or the Illusion of Peace?, 65 MIDDLE E. J. 381, 388 (2011). 46. Id. at 390. 47. Oren Barak, ‘Don’t Mention the War?’: The Politics of Remembrance and Forgetfulness in Postwar Lebanon, 61 MIDDLE E. J. 49 (2007). 48. Craig Larkin, Beyond the War? The Lebanese Postmemory Experience, 42 INT’L. J. MIDDLE E. STUD. 610, 615 (2010). 49. See Fabiola Azar, Etienne Mullet & Genevieve Vinsonneau, The Propensity to Forgive: Findings from Lebanon, 36 J. PEACE RES. 169, 180 (1999) (demonstrating that the study’s participants’ propensity to forgive an offender did not significantly depend on the offender’s membership in the participants’ own religious group or another group; instead, a strong majority supported Muslim-Christian coexistence and condemned militias).

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lished the Iraqi Special Tribunal (IST).50 The IST was given jurisdiction to try suspects for genocide, crimes against humanity, and war crimes committed between 1968 and 2003, and it was responsible for the trial of Saddam Hussein and other senior officials in the overthrown Ba’athist regime.51 Although technically a national court created by Iraqi law, the IST was directly shaped by the American occupational authority. The U.S.-led Coalition Provisional Authority (CPA) drafted the IST Statute along with the Iraqi Governing Council; CPA Administrator Paul Bremer officially certified the IST’s creation; a cadre of American and international staff supported the IST and provided extensive training to Iraqi personnel; and the IST functioned according to several procedures foreign to Iraqi law.52 As just one example of the weight of American influence over the process, the transitional Iraqi government appointed as IST head Salem Chalabi, nephew of Ahmad Chalabi, the former darling of the neo-conservatives who had stirred favor for the war in the United States.53 Functionally a hybrid court, the IST proved to be highly politicized and divisive among Iraqis—fanning the flames of Shi’ite and Kurdish retribution and creating a sense among Sunnis that they were being targeted as a community.54 The American occupational authorities were not familiar with the Iraqi legal system and had de-prioritized transitional justice planning.55 The result was arguably a string of

50. Law of the Iraqi Higher Criminal Court (Law No. 10), Al-Waqaeh al-Iraqia [Iraqi Official Gazette] No. 4006 (Oct. 18, 2005). 51. Michael A. Newton, The Iraqi High Criminal Court: Controversy and Contributions, 88 INT’L REV. RED CROSS 862, 407 (2006). 52. M. Cherif Bassiouni & Michael Wahid Hanna, Ceding the High Ground: The Iraqi High Criminal Court Statute and the Trial of Saddam Hussein, 39 CASE W. RES. J. INT’L L. 21, 39-41 (2007). 53. Dana Michael Hollywood, The Search for Post-Conflict Justice in Iraq: A Comparative Study of Transitional Justice Mechanisms and Their Applicability to Post-Saddam Iraq, 33 BROOK. J. INT’L L. 59, 114 (2007). 54. Saddam Trial Could Worsen Iraq’s Sectarian Divide, AFP, Oct. 16, 2005, http://www.ekurd.net/ mismas/articles/misc2005/10/judgement80.htm (noting that Sunni Arabs say they feel targeted by the trial, while some Shi’ites and Kurds expressed a retributive desire for Saddam’s quick execution); Juan Cole, Saddam: The Death of a Dictator, SALON, Dec. 30, 2006, http://www.salon.com/ 2006/12/30/saddam_20/ (“The trial and execution of Saddam were about revenge, not justice. Instead of promoting national reconciliation, this act of revenge helped Saddam portray himself one last time as a symbol of Sunni Arab resistance, and became one more incitement to sectarian warfare.”). 55. Bassiouni & Hanna, supra note 52, at 37.

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politically infected trials that meted out victors’ justice.56 Hampered by security concerns and popular perceptions of the trial as a tool of illegitimate occupation,57 the trials tended to be less about accountability and more about establishing the new political order.58 The new order in the Iraqi case was one premised on sectarian division. Indeed, one of the first decisions taken by Paul Bremer was to initiate the “de-ba’athification” process, which fired up to 85,000 people (largely Sunnis) from their positions in government and the security services, radically upending the social fabric of Iraqi society and bolstering the insurgency.59 Initially rationalized by the Americans as a means of holding Ba’ath elites collectively responsible for the regime’s past human rights violations, de-ba’athification under Ahmad Chalabi’s leadership soon expanded beyond the military and civil service to media, politics, civil institutions, and state bureaucracy— effectively removing Sunni representation in government.60 While Saddam Hussein had manipulated ethno-religious cleavages in Iraq as a means of maintaining his grip on power, his manipulation was largely about controlling access to political and economic power, and dissidents of all ethnic and religious backgrounds (including Sunnis) felt

56. See Elizabeth Nielsen, Hybrid International Criminal Tribunals: Political Interference and Judicial Independence, 15 UCLA J. INT’L L. & FOREIGN AFF. 289, 293 (2010) (noting the possibility of sham trials where regime change is not truly effective, or show trials meting out victors’ justice when a new regime assumes power). Victors’ justice also arguably tainted the proceedings of the ICTR. The post-genocide Tutsi-dominated government in Rwanda hindered the tribunal’s investigation of violations by Rwanda Patriotic Front soldiers in the conflict, but rather than proceeding with RPF prosecutions, the ICTR took steps to appease the government. Des Forges & Longman, supra note 30, at 55. 57. Asli U. Bali, Justice Under Occupation: Rule of Law and the Ethics of Nation-Building in Iraq, 30 YALE J. INT’L L. 431, 432 (2005) (noting that Iraqis reacted to the trial of Hussein either with fear that Saddam did not seem as weak and humbled in court proceedings as previous reports suggested he would act or approval of Hussein’s defiance of the occupation and the legitimacy of the trial— either way, the Iraqi public had little confidence in the new government and its transitional justice scheme). 58. See John Dermody, Note, Beyond Good Intentions: Can Hybrid Tribunals Work After Unilateral Intervention?, 30 HASTINGS INT’L & COMP. L. REV. 77, 89-92 (2006). 59. See Hollywood, supra note 53, at 116-19. By contrast, the new transitional government in Libya, led by Ali Zeidan, has been careful in prosecuting Qaddafi regime officials and lustration has been on a case-by-case basis, despite protests from armed groups in the country. Trial by Error: Justice in Post-Qadhafi Libya, INT’L CRISIS GROUP, April 17, 2013, http://www.crisisgroup.org//media/ Files/Middle%20East%20North%20Africa/North%20Africa/libya/140-trial-by-error-justice-inpost-qadhafi-libya.pdf. 60. Miranda Sissons & Abdulrazzaq Al-Saiedi, A Bitter Legacy: Lessons of De-Baathification in Iraq, INT’L CTR. FOR TRANSITIONAL JUST., Mar. 2013, http://ictj.org/publication/bitter-legacy-lessonsde-baathification-iraq.

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the regime’s wrath; the American occupational authorities, by contrast, entered into their de facto sectarian project due to the failure to consult Iraqi experts on Iraqi politics and social structure.61 At its core, though, the American sectarian project that enveloped the IST and de-ba’athification was not only the result of ignorance of Iraqi society, but also a flawed presupposition that Iraqi society was inherently sectarian in nature. Documents prepared to educate U.S. soldiers engaging in combat in Iraq, for example, provided fixed characteristics of Sunnis, Shi’ites, Kurds, and other ethno-religious groups, even sub-dividing Iraq into three separate statelets (Kurdish, Sunni, Shi’ite) in one map.62 The effect of such a presupposition is the reduction of culture and society to fixed categories. “[A]ll diversity, subtlety, and variation are erased so that broad generalizations are made to represent the entire populace, without regard to economic level, educational level, rural and urban differences, geographic location, gender, travel experience, and so on.”63 Sect became the only relevant societal dividing line in the mind of the occupying power, and, as a result, sectarian policies like de-ba’athification inflamed social tensions and violence and encouraged the division of the relatively integrated country of Iraq along communal lines—a division most painfully evident in the ethnic cleansing of formerly mixed communities.64 The IST operated within this sectarian context. De-ba’athification had a direct effect on the proceedings of the IST in that former members of the Ba’ath Party were banned from serving on the court.65 More broadly, however, the retributive justice meted out by the IST should be seen as operating alongside de-ba’athification, together institutionalizing sectarianism as a newly invigorated political and social reality in Iraq. Like the Lebanese STL, the Iraqi IST was the product of international intervention motivated not only by world

61. Jeremy Sarkin & Heather Sensibaugh, How Historical Events and Relationships Shape Current Attempts at Reconciliation in Iraq, 26 WIS. INT’L L.J. 1033, 1042-61 (2009). 62. U.S. Marine Corps Intelligence Activity, Iraq Culture Smart Card: Guide for Cultural Awareness, Nov. 2004, http://cryptome.org/iraq-culture.htm. 63. Rochelle Davis et al., Cultural Sensitivity in a Military Occupation: The U.S. Military in Iraq, in ANTHROPOLOGY AND GLOBAL COUNTERINSURGENCY 297, 306 (John D. Kelly et al. eds., 2010). 64. Maps of Baghdad from 2003 to 2007 illustrate the sectarianization of Iraqi society, the increasing ethnic cleansing, and the shift from mixed neighborhoods to identifiably Sunni and Shi’i cantons. See Claudio Guler, Baghdad Divided, ISN SEC. WATCH, NOV. 9, 2009, http:// www.isn.ethz.ch/isn/Digital-Library/Articles/Detail//?lng⫽en&id⫽109316. 65. JOHN LAUGHLAND, A HISTORY OF POLITICAL TRIALS: FROM CHARLES I TO SADDAM HUSSEIN 242 (2008).

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powers’ geopolitical interests, but also preconceived notions about Arab society and culture. In both instances, justice took on a vengeful character that seems to have further divided, rather than reconciled, war-torn nations. III.

SECTARIAN ASSUMPTIONS AND POLITICAL MOTIVATIONS UNDERLIE THE CALL FOR INTERNATIONAL CRIMINAL TRIALS FOR SYRIA

The case studies presented in Part II demonstrate that transitional justice mechanisms imposed by international actors have the potential to entrench sectarian cleavages. While aimed in theory at promoting reconciliation and delivering justice, international involvement in criminal trials in Lebanon and Iraq arguably heightened the conditions for communal violence and only made minimal gains in terms of holding the perpetrators of past abuses accountable. The Iraqi case shows perhaps most clearly how dangerous presuppositions of sectarianism can produce dangerous sectarian realities. The Lebanese case, meanwhile, highlights the political biases of international politics and their sectarian translation on the ground. Unfortunately, the discourse surrounding the conflict in Syria and prospects for international involvement in transitional justice has begun to assume a similar sectarian tone. Certainly, some of the rhetoric has focused on lack of domestic capacity as the driving factor for holding the Asad regime accountable in an international criminal trial,66 and international organizations are attempting to comprehensively record the regime’s horrific human rights violations in preparation for accountability in future trials.67 However, the presumption of

66. A letter sent on behalf of fifty-seven nations to the U.N. Security Council, for example, reasons that because Syria has “not reacted to repeated calls from the international community to ensure accountability through a national procedure” the “Security Council must ensure accountability for the crimes that seem to have been and continue to be committed in the Syrian Arab Republic and send a clear signal to the Syrian authorities” by using its authority under the Rome Statute to refer Syria to the ICC. Letter from Thomas Guber, Charge d’affaires, Swiss Permanent Mission to the U.N. (Jan. 14, 2013), available at http://www.news.admin.ch/NSBSubscriber/ message/attachments/29293.pdf. 67. The Syrian Commission for Justice and Accountability (SCJA), a UK-funded organization led by a Canadian investigator who worked for the ICC, is attempting to document human rights violations in Syria for future trials. U.N. Office for the Coordination of Humanitarian Affairs, Analysis: The Beginnings of Transitional Justice in Syria, Dec. 14, 2012, http://www.irinnews. org/report/97045/Analysis-The-beginnings-of-transitional-justice-in-Syria. Another evidencecollecting group, the U.S.-funded Syria Justice and Accountability Centre (SJAC), seems skeptical of the capacity of the Syrian judiciary (which has been marginalized and manipulated by the regime for decades) and Syrian law (which does not codify all international crimes) to handle

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sectarianism has begun to emerge as the primary motivation for having international trials as the mechanism of choice.68 At a meeting of Syrian activists focused on transitional justice in January 2013, for example, one participant expressed a preference for international trials because Syria is a “divided society.”69 Perhaps these proposals for international involvement in transitional justice are a result of observers’ fear that Syria will suffer the same destructive effects of sectarianism that Iraq saw without the international community doing something to ensure that minorities are adequately represented in a post-Asad transitional government.70 Even so, the sense of inevitability of the sectarian narrative is palpable and, as this Note argues, dangerous for several reasons. First and foremost, the presupposition that Syria is “inherently sectarian”71 or going through “balkanization” obscures the reality of

trials of regime officials. Pub. Int’l Law & Pol’y Grp., Mapping Accountability Efforts in Syria 16 (2013), available at https://www.documentcloud.org/documents/627591-mapping-accountabilityefforts-in-syria.html. 68. See, e.g., Anne Applebaum, How to Advance Syria’s Transition, WASH. POST, Feb. 29, 2012, http://articles.washingtonpost.com/2012-02-29/opinions/35443130_1_syrian-army-syrian-rebelshoms (proposing an ICC referral by the Security Council as key to delegitimizing the regime in the eyes of minorities like Alawites and focusing on the post-Asad era). 69. Stephanie Dunning, The What and How of Transitional Justice in Syria, YOUR MIDDLE E., Feb. 28, 2013, http://www.yourmiddleeast.com/features/the-what-and-how-of-transitional-justicein-syria_13326 (quoting Radwan Ziadeh as saying, “Since Syria is a divided society it is much better to go on an international level because at least that will ease the preparation for reconciliation in the future”). 70. A legal memo produced by McCue & Partners, a London-based firm advising the Syrian Support Group, which claims to be the “only organization licensed by the U.S. government to provide financial and non-lethal support to the Free Syrian Army,” SYRIAN SUPPORT GROUP, http://www.syriansupportgroup.org/about-us/ (last visited Apr. 28, 2013), for example, seems to fear that the Alawites of Syria will become like the Sunnis of Iraq. It proposes targeting 100 regime insiders whose defection would help accelerate Asad’s fall by offering them financial amnesty for cooperation; otherwise their assets will be seized and used to compensate victims. It would also offer Alawites who aren’t in the inner circle “safe passage”: “Our intelligence reports show that many Alawites are standing with Assad for their own survival, because of misunderstanding of (opposition) plans for post-Assad transitional justice system. Many feel they will be executed wholesale . . . This fact is helping Assad militarise the whole sect in a life and death fight (for) Damascus, with the potential mass destruction of Damascus and gross loss of life.” Without addressing Alawite fears, “this issue will not be solved necessarily by Assad leaving power, and will create a major risk for Syria’s future stability in years to come.” David Ignatius, Punishment or Pardon: Opposition Bid to Stop Syria’s Slide to Anarchy, THE AUSTRALIAN, Jan. 5, 2013, http:// www.theaustralian.com.au/in-depth/middle-east-in-turmoil/punishment-or-pardon-oppositionbid-to-stop-syrias-slide-to-anarchy/story-fn7ycml4-1226547800001. 71. See Michael Doran, Syria’s Coming Sectarian Crack-Up, WALL ST. J., Aug. 13, 2012, http:// online.wsj.com/article/SB10000872396390443537404577580820175784572.html (asserting that

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Syrian society, creating divisions where they did not necessarily exist and discursively dividing mixed communities and cities into ethnically cleansed cantons. Syria is unlike the former Yugoslavia in the sense that the Yugoslav regime had been decentralizing power to the republics in the years leading to the collapse of the state, whereas the Ba’ath regime has been centralizing power in the Syrian state.72 In the current brutal conflict, the opposition and the regime are each contesting the entirety of Syria, not calling for carve-outs of the state or a change of borders.73 Thus, the threat here is not so much that the Syrian nation will dissolve into statelets based on sect, but that sectarian violence, ethnic cleansing, and confessionalism will become entrenched in the new political order. Second, the presupposition of Syrian sectarianism also obscures the geo-political power dynamics motivating the attempt by international actors—and the United States in particular—to internationalize and control Syrian transitional justice mechanisms. While the Obama administration and members of Congress are speaking with different voices on Syria, a consensus is emerging that an international tribunal would most effectively serve the dual U.S. foreign policy goals of weakening the Syria-Iran-Hizballah axis, which threatens Israel,74 and backing a

Syrian state institutions are “inherently sectarian” and that Syria is like “Humpty Dumpty,” made up of “four or five diverse regions glued together after World War I”; furthermore, like Lebanon, Syria “has now dissolved into its constituent parts,” and we will soon see the “future canton of Alawistan”). See also Daniel Wagner & Sam Lucas, Brave New World of ‘Syrianization’, HUFFINGTON POST, Apr. 1, 2013, http://www.huffingtonpost.com/daniel-wagner/the-brave-new-world-ofsy_b_2989934.html (labeling the process “syrianization”). 72. Franco Galdini, The Balkanization of Syria: Myth or Reality?, JADALIYYA, Aug. 28, 2012, http://www.jadaliyya.com/pages/index/7066/the-balkanisation-of-syria_myth-or-reality. 73. Id. 74. See U.S. Policy Toward Syria: Hearing before the Senate Comm. on Foreign Relations, 113th Cong. (2013) (testimony of Robert S. Ford, ambassador to Syria), http://www.state.gov/p/nea/rls/rm/ 2013/207416.htm [hereinafter Robert Ford] (describing Iran as playing a “pernicious” role in the conflict by helping the Asad regime build “sectarian militias” and drawing Hizballah to the battlefield); Dan Roberts & Spencer Ackerman, Obama Hints at Larger Strategy to Topple Assad in Effort to Win Over Republicans, THE GUARDIAN, Sept. 3, 2013, http://www.theguardian.com/world/ 2013/sep/03/obama-strategy-assad-republicans-syria (explaining President Obama’s statement that the United States views Syria in terms of a “broader strategy” for transition in the region, focused largely on Iran); Rebecca Shimoni Stoil, Israeli Policy Statement Supports Obama on Syria, TIMES OF ISRAEL, Sept. 4, 2013, http://www.timesofisrael.com/israeli-policy-statement-supportsobama-on-syria/ (explaining that Israel—whose security is a top U.S. priority—also focuses on the Syria-Iran-Hizballah axis, and quoting Israeli ambassador to the United States Michael Oren’s backing of the U.S. strike on Syria and support for the largely-Sunni rebels fighting the Iranian-backed forces in the lead-up to such strike, saying “even regarding the jihadist opposition, we prefer the bad guys who aren’t backed by Iran over those who are”).

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moderate opposition against radical Sunni militants who pose a terrorist threat.75 For their part, members of Congress proposed a resolution in the House of Representatives calling on the president to pursue a course that would “immediately” establish an ad hoc tribunal for Syria, justifying it in part on the notion that Syria is a nation divided by sect.76 Politically, proposing an international tribunal appears to have been a means for critics of the Obama administration on both the left and the right to counter the administration’s hoped-for strike on Syria in September 2013 by showing that other options are on the table.77 However, the congressional call for an international tribunal exceeds domestic politics, reflecting a foreign policy priority of using the tribunal to weaken the Iranian-backed Asad regime.78 Congress’s approach to Syrian transitional justice is significant in that it echoes the all too familiar discourse of Syria being a divided society incapable of handling a trial. Syrians are reduced to a voiceless,

75. Mark Moyar, U.S. Interests in Syria, Past and Present, HOOVER INST. STANFORD UNIV., http://www.hoover.org/related-materials/144801 (explaining that U.S. support for the opposition appears to be based on the notion of backing the Sunni moderates over the Sunni extremists but that the United States remains aware that it is not always clear which rebel group falls into which category). 76. Immediate Establishment of Syrian War Crimes Tribunal Resolution, H.R. Res. 51, 113th Cong. (2013), available at http://www.gpo.gov/fdsys/pkg/BILLS-113hconres51ih/pdf/BILLS113hconres51ih.pdf (citing as a rationale for the tribunal’s establishment the need of finding “justice for all, including members of all factions, political parties, ethnicities, and religions”). 77. Rep. Chris Smith, a Republican who sponsored the bill, frames a tribunal as a “non-lethal way to help ensure that Bashar al-Assad and other perpetrators of atrocities in Syria are held to account, not someday far in the future but beginning now.” Chris Smith, Opinion, Establish a Syrian War Crimes Tribunal, WASH. POST, Sep. 9, 2013, http://articles.washingtonpost.com/2013-0909/opinions/41895454_1_syrian-court-war-crimes-tribunal-international-criminal-court; Barbara Lee, Op-Ed., Obama’s Best Option on Syria is to Listen to Congress, THE GUARDIAN, Sept. 10, 2013, http://www.theguardian.com/commentisfree/2013/sep/10/obama-best-option-syria-congress (author, Democrat Rep. Barbara Lee, also calling for the administration to “work with the international community to establish a Syrian war crimes tribunal”). 78. See Syria: Weighing the Obama Administration’s Response: Hearing Before the H. Comm. on Foreign Aff., 113th Cong. (2013) (statement of Rep. Chris Smith), http://foreignaffairs.house. gov/hearing/hearing-syria-weighing-obama-administration%E2%80%99s-response (addressing Sec’y of State John Kerry and stressing that a tribunal would stand a better chance of holding the Asad regime accountable than a limited strike, saying, “You yourself said, Mr. Secretary, we should send—you would send them to jail. Well, let’s send them to jail. But killing people and not targeting Assad himself may be accountability, but I think there are other alternatives”).

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“terrorized people”79 in need of the hope only American-led, nonmilitary intervention can provide.80 That a trial is the best and only means of realizing transitional justice and promoting a political solution is taken as a given.81 Sadly, members of Congress fail to consider how these goals conflict: an immediate international criminal trial would likely be obstructed by non-cooperation from the Asad regime and serve as a roadblock to negotiations over a power-sharing transition. While the Obama administration has not specified a preference for a particular transitional justice mechanism for Syria,82 it funds the Syrian Justice and Accountability Centre (SJAC), an organization that works with opposition fighters to gather evidence for future criminal trials.83 The United States also funds the Istanbul-based opposition group, the Syrian National Coalition (SNC),84 several members of which have endorsed a transition “roadmap” calling for the establishment of a

79. Adelaide Mena, Congressional Hearing Considers Syrian War Crimes Tribunal, CATH. NEWS AGENCY, Oct. 31, 2013, http://www.catholicnewsagency.com/news/congressional-hearingconsiders-syrian-war-crimes-tribunal/ (quoting Rep. Chris Smith). 80. See Khalid Saghieh, Sleeping with the Enemy: The Global Left and the ‘No to War’ Discourse, JADALIYYA, Sept. 14, 2013, http://www.jadaliyya.com/pages/index/14157/sleeping-with-theenemy_the-global-left-and-the-no (arguing that opposition to a military strike on Syria is framed in humanitarian terminology that obscures American power and hegemony and makes the culturalist assumption that Syrians are still not secular-democratic enough). 81. See Lee, supra note 77 (writing in one continuous stream of thought that the United States should both work to establish a war crimes tribunal and pressure “all internal and external parties to engage in the Geneva process of negotiation”). 82. The administration appears to be hesitant to officially endorse an international trial. During negotiations preceding adoption of UN Security Council Resolution 2118, which condemned the use of chemical weapons in August 2013, the United States opposed including Chapter VII referral of Syria to the International Criminal Court (ICC). This was likely for two reasons: First, the United States wanted to maintain Syrian government cooperation with the destruction of its chemical weapons arsenals, and second, an ICC referral would apply to the whole of Syrian territory, theoretically including ICC scrutiny of Israeli occupation of the Golan Heights. Carsten Stahn, Syria, Security Resolution 2118 (2013) and Peace versus Justice: Two Steps Forward, One Step Back?, EJIL: TALK!, Oct. 3, 2013, http://www.ejiltalk.org/syria-security-resolution2118-2013-and-peace-versus-justice-two-steps-forward-one-step-back/. The final text of Resolution 2118 only indirectly references transitional justice by including as an annex the June 30, 2012 Geneva Communique´, which calls for a process of accountability and national reconciliation. S.C. Res. 2118, Annex II, U.N. Doc. S/RES/2118 (Sept. 27, 2013), available at http://www.un.org/ en/ga/search/view_doc.asp?symbol⫽S/RES/2118(2013). 83. Thuy Le, Interview with Syria Justice and Accountability Centre, FREE NEWS OF THE WORLD, Aug. 7, 2013, http://fnotw.com/Article/Full/1467. 84. Mitchell Prothero, New Syrian Opposition Leader Shows U.S., Saudi Influence, SEATTLE TIMES, Jul. 8, 2013, http://seattletimes.com/html/nationworld/2021351038_syrianoppositionxml.html.

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hybrid court, among other mechanisms.85 The rationale for a hybrid court in the roadmap is that the presence of international experts will help reassure Syrians that the trial process is transparent and that the “goal is not to target a specific religious group and hold them accountable.”86 The support that members of the Syrian opposition have shown for international trials is an indication of the level of power and influence that international actors have. The Obama administration has made no secret of its aim to back the opposition and thereby “weigh in on behalf of those who promote freedom and tolerance” in the “real competition under way now between extremists and moderates in Syria.”87 The United States was a central force in the creation of the SNC in 2012 and has continued to exert influence on the organization’s internal organization and budget.88 The United States has also been arming opposition fighters it determines are moderate and carefully vetted.89 These efforts seem to have paid off in convincing at least opposition leaders that Syrians need to be made more tolerant.90 The driving narrative here is as follows: international intervention (in the form of civic trainings and international criminal trials) will create Syrian tolerance as an antidote to Syrian extremism/sectarianism. These categories are problematic in that they operate on fixed culturalist characterizations. The international actor is assumed to be a neutral— even humanitarian—agent, while the Syrian is an unstable subject whose only hope is to be remade in the international actor’s liberal, tolerant image.91 In reality, of course, the international actor is

85. SYRIAN CENTER FOR POLITICAL AND STRATEGIC STUDIES & SYRIAN EXPERT HOUSE, SYRIA TRANSITION ROADMAP 142 (2013), available at http://syrianexperthouse.org/archives/775. 86. Id. 87. Robert Ford, supra note 74. 88. Prothero, supra note 84. 89. Matthew Lee, US Poised to Vet Possible Arms for Syrian Rebels, ASSOCIATED PRESS, May 24, 2013, http://bigstory.ap.org/content/us-poised-vet-possible-arms-syrian-rebels. 90. The SJAC director, for example, believes that more must be done to convince Syrians, who have been made “rigid” by societal divisions, to accept transitional justice mechanisms. Le, supra note 83. SNC officials echo this agenda, encouraging “education” of opposition fighters on the Geneva Conventions and rules of war so that they are made to understand “what’s acceptable and what’s not acceptable.” Audrey Ann Lavaliee-Belanger, Syria’s Inglorious Basterd, JADALIYYA, May 17, 2013, http://www.jadaliyya.com/pages/index/11764/syrias-inglorious-basterd. 91. Liberalism neither rejects the possibility of Islamic tolerance outright nor critically evaluates its articulations; rather, it holds that the intolerant, unpredictable Arab-Islamic Other must be stabilized and made tolerant in the liberal image. Wendy Brown perhaps most eloquently outlines how liberal tolerance discourse functions. She says that liberalism, which has developed in a Western, secular context, assumes itself to be the neutral arbiter of what is “tolerant” or

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hardly neutral, but rather operates according to its own neo-liberal goals and geo-strategic interests, dramatically shaping power configurations in the targeted country.92 Additionally, as this Note demonstrates in the Iraqi and Lebanese cases, the international actor’s intervention can create new sectarian divisions or entrench old ones. In Syria, this process may have already begun: U.S. intervention in the form of military support for opposition fighters appears to have indirectly enabled violent attacks on civilians on the basis of their sect.93 By pre-supposing that the Syrian character is timeless and sectarian, liberal discourse eliminates the need to investigate the complex social, political, and historical circumstances that shape lived realities in Syria. For example, the Alawis, who are assumed to constitute a homogenous Shi’ite, pro-Asad block,94 are in reality a heterogeneous community. The allegiance some Alawis feel toward the Asad regime is the result of decades of regime manipulation of their socio-economic position and military service. Meanwhile, many Alawis object to being placed in the “Alawi box” and recall how the present violence has disrupted the inter-communal lives they led before the fighting.95 Sunnis likewise have had varied interactions with the Asad regime in past decades,

“civilized” or human rights-oriented, because it claims to be removed from culture. With its secular and universalizable scope, it is qualified to classify the cultural practices of others as potentially intolerant, backwards, or antagonistic to rights. Having deemed cultural Others barbaric and incomprehensible, liberalism ignores the complex political, socio-economic, social, or historical factors really at play. Thus in the name of tolerance, liberalism de-politicizes and de-contextualizes, leaving the Other without actionable claims. WENDY BROWN, REGULATING AVERSION: TOLERANCE IN THE AGE OF IDENTITY AND EMPIRE 6-8 (2008). 92. The “technical” and “expert” assistance provided by the international actor gives the impression that the international actor is “a rational consciousness standing outside” of the targeted country, when it really constitutes a “central element in configurations of power within.” See TIMOTHY MITCHELL, RULE OF EXPERTS: EGYPT, TECHNO-POLITICS, MODERNITY 233 (2002). Aware of the power it wields, the international actor often partners with local organizations that conduct project implementation to avoid the impression of external interference. See LARRY DIAMOND, THE SPIRIT OF DEMOCRACY: THE STRUGGLE TO BUILD FREE SOCIETIES THROUGHOUT THE WORLD 338 (2008). 93. See Human Rights Watch, “You Can Still See Their Blood”, § II (Oct. 11, 2013), available at http://www.hrw.org/node/119645/section/6 (documenting sectarian massacres of hundreds of civilians by U.S.-backed Sunni opposition forces in August 2013 in majority-Alawite areas near Lattakia). 94. See, e.g., Memorandum from Elliott Abrams for the Council on Foreign Relations, American Options in Syria, COUNCIL ON FOREIGN REL. PUB. INNOVATION MEMORANDUM NO. 9 (Oct. 24, 2011), http://www.cfr.org/syria/american-options-syria/p26226. 95. AZIZ NAKKASH, THE ALAWITE DILEMMA IN HOMS: SURVIVAL, SOLIDARITY AND THE MAKING OF A COMMUNITY 1-6 (2013), available at http://library.fes.de/pdf-files/iez/09825.pdf.

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ranging from resistance to rapprochement and overt cooperation.96 Current imaginings of “Sunni extremism” should be tempered by awareness that Sunni extremism where it does exist in Syria has largely been created by the presence of foreign fighters in Syria and significant financial support from Gulf States.97 All this nuance is lost on the interventionist liberal discourse and ironically plays into the hands of the Asad regime’s own sectarian narrative.98 For decades, the regime has sought to divide society discursively along religious lines then assert itself as the only entity able to provide national unity.99 Today, international actors’ sectarian posturing has allowed the Asad regime to frame itself as the sole protector of the various segments of Syrian society in the face of a divisive threat coming from abroad, and it has had some success playing on the fears of Christian and Alawite minorities.100 The fear created by violent conflict certainly does not help: not only has the fighting torn Syrians from their homes, but it has also cornered them into communal identities, leaving them struggling to avoid divisions of sect, class, and opinion in their daily lives.101 Finally, the presumption of Syrian sectarianism advanced by both the

96. The relationship of the regime to Sunni religious scholars is telling here. Historical clerical resistance to the Ba’ath party gradually morphed into a rapprochement and deepening partnership with the regime over the last decade, challenging simplistic assumptions that Sunnis never accorded the regime religious legitimacy. THOMAS PIERRET, RELIGION AND STATE IN SYRIA: THE SUNNI ULAMA FROM COUP TO REVOLUTION 3 (2013). 97. Marwa Daoudy, Sectarianism in Syria: Myth and Reality, OPEN DEMOCRACY, Jul. 22, 2013, http://www.opendemocracy.net/marwa-daoudy/sectarianism-in-syria-myth-and-reality. 98. See Sarah Harvey, Op. Ed., Syria is not Iraq, AL JAZEERA, Mar. 31, 2013, http://www. aljazeera.com/indepth/opinion/2013/03/201333115221748710.html (contending that the regime knows that propagating the sectarian narrative provides the greatest chances of staying in power). 99. Alex Schank, Revolutionary Rights and the Arab Christian ‘Plight’, 1948: A RTS. F., (Jan. 30, 2012), http://1948arightsforum.blogspot.com/2012/01/revolutionary-rights-and-arabchristian.html. 100. Tony Karon, The Fate of Bashar Assad: Will He Be the Next Gaddafi or the Next Milosevic?, TIME, Jan. 12, 2012, http://world.time.com/2012/01/12/is-syrias-bashar-assad-the-next-gaddafior-could-he-be-the-middle-easts-milosevic/. 101. One investigation into life in war-torn Damascus finds that while Damascenes had prided themselves once on not knowing others’ religious affiliations, today the situation is changing. Attacks and kidnappings launched by regime and opposition fighters simply on the basis of a person’s presence in particular areas has led some to rail against people of other affiliations even as they continue to live among them in the capital—a process colloquially referred to as “tamsahna,” or growing thick skin in order to cope. Sarah Birke, Damascus: What’s Left, N.Y. REV. OF BOOKS, Aug. 2, 2013, http://www.nybooks.com/blogs/nyrblog/2013/aug/02/ damascus-whats-left/.

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regime and international actors obscures the fundamentally democratic, inclusive, and non-violent roots of the Syrian uprising, which has always been about ordinary citizens demanding freedom and social justice.102 Syrian activists not only reached out across the apparent sectarian divide in non-violently articulating their demands at the beginning of the uprising, but they continue to do so.103 Also, Alawis, contrary to a misguided but popular narrative, have always been among the activist proponents of reform and continue to voice their opposition to the regime.104 The assumption that Alawis are inherently in opposition to Sunnis or that Syria is rightfully Sunni because of its Sunni majority is a “discourse of power that obscures some forms of oppression or worse glamourises them; meanwhile, the values that motivated the protests . . . become a distant memory.”105

102. Ali Ibrahim, Balkanization or Lebanization?, ASHARQ AL-AWSAT, Aug. 29, 2012, http:// www.aawsat.net/2012/08/article55240833 (“The battles taking place now in Syria may constitute a civil war, yet it is a fight between a regime and its beneficiaries on the one hand, and ordinary people on the other. The demands of these ordinary people are, and always have been, freedom and social justice. We did not hear anyone within the opposition advocating the exclusion of certain Syrian groups, or for a specific region to be granted independence. On the contrary, the evidence suggests that it is only the al-Assad regime that is seeking to do so.”). 103. Non-violent activism continues as embodied in a flyering campaign known as Syria First, which criticizes abuses by both the regime and the rebels; admittedly, however, the goals of the peaceful movement have shifted from toppling the regime to monitoring the regime’s path. Line Zouhour, Whither the Peaceful Movement in Syria?, JADALIYYA, Mar. 18, 2013, http://www.jadaliyya.com/ pages/index/10616/whither-the-peaceful-movement-in-syria. The Gathering for Syrian Civil Youth is one group that campaigns against the regime but also promotes unity among religious sects in the face of the increasing role of jihadi and foreign fighters in the Syrian struggle. Members organize non-violent protests, distribute flyers, put up posters, hand out flowers, conduct sit-ins, and establish cells in cities across Syria. Syrian Activists Reach Across Sectarian Divide, BBC NEWS, Oct. 5, 2012, http://www.bbc.co.uk/news/world-middle-east-19827564. Other popular neighborhood committees have begun stationing “well-dressed men who must be clearly identified and who must protect everyone, Christians, Druze, Sunnis, Alawites, everyone.” Robert Fisk, Sectarianism Bites into Syria’s Rebels, THE INDEP., Jul. 22, 2012, http://www.independent.co.uk/voices/ commentators/fisk/robert-fisk-sectarianism-bites-into-syrias-rebels-7964251.html. Rhetorically, citizen-activists have begun to criticize the militant opposition on similar ethical grounds to that used to delegitimize the regime. Bassam Haddad, The Growing Challenge to the Syrian Regime and the Syrian Uprising, JADALIYYA, Jun. 30, 2013, http://www.jadaliyya.com/pages/index/12556/the-growingchallenge-to-the-syrian-regime-and-the. 104. See, e.g., Khaled Yacoub Oweis, Fearing Stark Future, Syrian Alawites Meet in Cairo, REUTERS, Mar. 23, 2013, http://www.reuters.com/article/2013/03/23/us-syria-crisis-alawitesidUSBRE92M00G20130323. 105. Yaman Salahi, Sectarian Narratives Promote Troubling Agendas, Not Justice, AL JAZEERA, Feb. 28, 2013, http://www.aljazeera.com/indepth/opinion/2013/02/2013225165410892976. html; Charles Tripp, Resistance Within Resistance, JADALIYYA, Mar. 26, 2013, http://www.jadaliyya.com/ pages/index/10812/resistance-within-resistance (noting that the dominant narrative of violent

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The inclusive, democratic counter-discourse to sectarianism that is being advanced by Syrian activists represents the broader hopes of the Arab Spring, which posits a new “political imaginary” rooted in democratic governance and social justice in the place of authoritarian power.106 Accountability has been a key demand of the Arab Spring;107 however, the trend has been toward domestic justice and truth and reconciliation commissions as the preferred mechanisms of transitional justice, not international trials.108 Whether Syrians will ultimately choose truth and reconciliation109 or embrace international criminal trials remains to be seen. However, it should be the Syrian people’s choice to make, not the choice of international actors or anyone else. If a meaningful democratic transitional government is to emerge from the ashes of the current conflict, we can hope that the mechanism(s) selected will advance democratic values and reconciliation.110 Meanwhile, international speculation as to what transitional justice mechanism is most appropriate should be tempered with patience and steer clear of sectarian prophecies that threaten to become reality and obscure the actual dynamics of the Syrian uprising. Unfortunately, current musings on transitional justice preemptively focus on “miti-

resistance has become hegemonic to some extent, leaving advocates of non-violence in Syria doubly oppressed: “once by the ruling regime that provoked their resistance in the first place; and then again by forces of resistance determined to pursue the armed struggle as a token not simply of their courage, but of their dedication to the resistance project itself”). 106. Benoit Challand, The Counter-Power of Civil Society and the Emergence of a New Political Imaginary in the Arab World, 18 CONSTELLATIONS 271 (2011). Contra Filipe R. Campante & Davin Chor, Why was the Arab World Poised for Revolution? Schooling, Economic Opportunities, and the Arab Spring, 26 J. ECON. PERSP. 1672 (2012) (arguing that the Arab Spring is the result of poor education and lack of employment among youth). 107. See Emily Perish, Jenay Shook & Eric Wiebelhaus-Brahm, Transitional Justice in the Wake of the Arab Spring (Int’l Studies Ass’n., Working Paper 2012), available at http://ssrn.com/ abstract⫽2087696 (comparing Tunisia’s institutional commitment to transitional justice with Bahrain’s superficial reforms and reports). 108. Paul R. Williams & Colleen (Betsy) Popken, U.S. Foreign Policy and the Arab Spring: Ten Short-Term Lessons Learned, 41 DENV. J. INT’L L. & POL’Y 47, 57 (2012). 109. One outcome of the January 2013 meeting of activists was a proposal for a truth-seeking transitional justice mechanism, public hearings, documentary films sharing stories of the conflict, and a human rights violation database. Dunning, supra note 69. The McCue memorandum also proposes a “truth and reconciliation” process that would send “a strong positive signal to the people of Syria that victory for the rebels is inevitable, [and that the new government] will deliver justice, compensate victims and be compassionate towards all.” Ignatius, supra note 70. 110. See Thomas Obel Hansen, Transitional Justice: Toward A Differentiated Theory, 13 OR. REV. INT’L L. 1, 4-10 (2011) (noting that a democratic new regime is theoretically intent on furthering the values that its rule is built on).

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gation” of expected sectarian violence in the transitional phase and stress the need for international actors to promote tolerance.111 These musings lead to proposals that the ICC or a similar international tribunal act as the only possible guarantor of future tolerance in Syria.112 Such missionary logic ignores not only the already-tolerant nature of the Syrian uprising but also the potential downsides of an international court, such as politicization and a propensity for victors’ justice, which the Lebanese STL and Iraqi IST cases demonstrated.113 This logic also obscures the political motivations of international actors who seem more concerned with using the threat of international criminal prosecution as an incentive to get al-Asad to step down from power than they are with finding the transitional justice mechanism that will most effectively heal Syrian society.114 The missionary complex underlying the proposal of international criminal trials for Syria is thus rather shortsighted in scope. IV.

PROSPECTS FOR TRANSITIONAL JUSTICE IN SYRIA: TRUTH COMMISSIONS AND RELIGIOUSLY INSPIRED RECONCILIATION

This Note speculates that transitional justice in Syria will be most effectively served not through international criminal trials, but by a process of truth and reconciliation that furthers the democratic and non-violent goals of the youths and citizens who started the uprising first in Dera’a, then across Syria in 2011.115 Religion, which has always

111. E.g., Hof & Simon, supra note 14. 112. See, e.g., Mustapha Haid, Transitional Justice in Syria: Scenarios of Implementation, in TRANSITIONAL JUSTICE: A HANDBOOK FOR JOURNALISTS, CITIZENS, AND ADVOCATES 13, 14 (Pete Eichstaedt & Ben Gilbert eds., 2013), available at http://iwpr.net/what-we-do/printed-materials/ transitional-justice-handbook (speculating that the post-Asad government “must deal with deep social, geographical and sectarian divisions, the size and effects of which are unpredictable” and proposes a referral to the ICC as a meals of preventing barbaric executions of the type meted out on former Libyan dictator Moammar Gadhafi). 113. David Tolbert, Transitional Justice Will Help Syria, But Not as a Quick Fix, INT’L CTR. FOR TRANSITIONAL JUST., Jan. 18, 2013, http://ictj.org/news/transitional-justice-will-help-syria-not-quickfix (arguing that criminal prosecutions may ignore violations committed by rebels); Simon Adams, The World’s Next Genocide, N.Y. TIMES, Nov. 15, 2012, http://www.nytimes.com/2012/11/ 16/opinion/the-worlds-next-genocide.html (noting that all perpetrators will need to be held to account, including the rebels, if trials are to be successful and minority Alawites are to avoid persecution). 114. Betcy Jose, The Case for Restraint: Syria and the International Criminal Court, AL JAZEERA, Mar. 21, 2013, http://www.aljazeera.com/indepth/opinion/2013/03/2013320164619306786.html. 115. Deraa protests: Organiser recalls start of Syrian uprising, BBC NEWS, Mar. 15, 2013, http:// www.bbc.co.uk/news/world-middle-east-21787787.

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played a role in the uprising, need not be a force for social divisiveness, but can in fact help reconcile communities that have been divided by violence and discourses of sectarianism. While recognizing that there is always the threat of romanticizing local justice and thereby obscuring the discourses of power that motivate it,116 this Note nonetheless anticipates that truth-seeking mechanisms and inter-communal forums promoting forgiveness will be most effective in realizing transitional justice in Syria.117 Truth-seeking mechanisms help create a new “social imaginary,” or sense of social belonging and relation to others, by introducing moral language that informs a society oriented toward human rights and non-violence.118 Truth-seeking and reconciliatory mechanisms should

116. The Rwandan gacaca courts are an example of local justice gone awry. Despite much international hype surrounding their use as a “traditional” justice mechanism, the gacaca are a reinvented tradition and a form of state-imposed “informalism” that expands the state’s reach into local communities and obscures the ruling RPF regime’s growing authoritarianism and silencing of not just Hutu opponents, but Tutsi critics as well. Declarations of national reconciliation are undercut by instrumentalization of the genocide and gacaca to attack opponents and dominate the discourse over history and reconciliation. The RPF-dominated government insisted on retributive justice after the genocide and arrested tens of thousands of genocide suspects often on unsubstantiated grounds. It proceeded to use the gacaca system to impose collective guilt rather than individualized accountability for the genocide. Lars Waldorf, Mass Justice for Mass Atrocity: Rethinking Local Justice As Transitional Justice, 79 TEMP. L. REV. 1, 37-40 (2006). The regime also attempted to limit accountability for RPF war crimes by passing a 2004 law removing gacaca courts’ subject matter jurisdiction over war crimes. Id. at 61. Local justice could have been better equipped in this case were state structures less coercive and reparation provided to victims. Id. at 85. 117. Restorative approaches in transitional societies should also be accompanied by efforts to respond to people’s basic needs and security. Data from Sierra Leone and Liberia indicate that above retributive justice, victims of conflict want more transformative forms of justice focused on things like food, health, shelter, and education. Matiangai Sirleaf, Emerging Voices: Making Room for the Distributive in Transitional Justice, OPINIO JURIS, Aug. 27, 2013, http://opiniojuris.org/2013/08/ 27/emerging-voices-making-room-distributive-transitional-justice/. Early surveys in Syria reflect a similar trend: First and foremost, Syrians want the fighting to stop; next they want to return to their homes and communities and receive job training, financial assistance to cope with loss, rehabilitation, prosthetics, and medical and psychological treatment. Syria: Civilian Harm and Assistance, CTR. FOR CIVILIANS IN CONFLICT, Sep. 2, 2013, http://civiliansinconflict.org/resources/ pub/syria-civilian-harm-and-assistance. 118. James W. McCarty III, Nonviolent Law? Linking Nonviolent Social Change and Truth and Reconciliation Commissions, 114 W. VA. L. REV. 969, 1003 (2012) (noting that this process often utilizes the media; in South Africa, testimonies from the truth and reconciliation mechanism in place were aired on television and radio, while in Argentina the final report of the truth commission was published in book form and has become one of the best-selling books in the country).

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not be entirely devoid of justice;119 rather, trials can be one part of a holistic approach to achieving justice, conceived in its restorative sense.120 Such restorative justice could involve the creation of a human rights commission that maps violations through a process of consultation, rather than uncritically relying on documentation provided by specific factions.121 Additionally, amnesties can play a role in fostering social stability in the short term; however, they certainly do not foster real reconciliation if they sweep public reflection on atrocities under the rug of forgetfulness122 or allow pardoned warlords to perpetrate more violence.123 Religion can play a constructive role in peace-building and restorative justice. Religious leaders are in a particularly good position to help communities reconcile and break down barriers because they have the trust of their followers124 and the “epistemic” knowledge of grassroots organization that allows them to influence political decision

119. Morocco’s truth commission is an example of truth without justice. Although the first in the Arab world, Morocco’s truth commission, which produced its final report in 2005, has been criticized for restricting victims from speaking about their torturers’ identity and restricting the time-frame of the violations victims can speak about, largely to avoid regime responsibility for recent disappearances and rights violations. Maryam Montague, Morocco’s Truth Revealed, and the Possibility of Reconciliation, 29 FLETCHER F. WORLD AFF. 59, 62-63. (2005). No trials have taken place in Morocco, and some who are alleged to have perpetrated human rights violations maintain their hold on high government posts. Truth Commission: Morocco, U.S. INST. OF PEACE, http://www.usip.org/publications/truth-commission-morocco (last visited Apr. 28, 2013). 120. See Stover & Weinstein, supra note 18, at 332; Zinaida Miller, Settling with History: A Hybrid Commission of Inquiry for Israel/Palestine, 20 HARV. HUM. RTS. J. 293, 323 (2007) (arguing that mutual declaration of responsibility, complicity, and legitimacy through history commissions can heal divided societies). 121. David Tolbert, Beyond Containment: Working for Accountability in Syria, HUFFINGTON POST, Oct. 2, 2013, http://www.huffingtonpost.com/david-tolbert/beyond-containment-workin_b_ 4029901.html; Paul Seils, Towards a Transitional Justice Strategy in Syria, INT’L CTR. FOR TRANSITIONAL JUST., Sept. 2013, http://ictj.org/publication/towards-transitional-justice-strategy-syria. 122. See Barak, supra note 47. 123. The 2007 amnesty in Afghanistan, which pardoned leading perpetrators of severe human rights violations nominally for the sake of national reconciliation, has permitted more violence by local warlords and promoted a state of impunity. Nadia Khan, Justice to the Extent Possible: The Prospects for Accountability in Afghanistan, 23 TEMP. INT’L & COMP. L.J. 1, 12 (2009). 124. In the context of the former Yugoslavia, where religion is often tied to perceived national groups (Catholic Croats, Orthodox Serbs, and Muslim Bosniaks), religious leaders can break down communal barriers and contribute to truth-telling and reconciliation because they have the trust of their communities. In a few instances, charities serving communities regardless of religious affiliation have done just that. Janine Natalya Clark, Religion and Reconciliation in Bosnia & Herzegovina: Are Religious Actors Doing Enough?, EUROPE-ASIA STUD. 674 (June 2010).

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making and promote inclusive public theologies.125 On the practical level, this occurs by increasing contact between groups in everyday interreligious settings,126 such as public charities or development projects. Abrahamic religions advance a view of justice that encompasses reconciliation and is thus amenable to transitional justice schemes such as truth commissions.127 Peace-building scholars argue that Muslims already possess values in their daily practice of religion that are compatible with adopting nonviolent actions as tools for fighting injustice.128 The case for Islamic tolerance is not uncontested;129

125. Nukhet Ahu Sandal, Religious Actors as Epistemic Communities in Conflict Transformation: The Cases of South Africa and Northern Ireland, 37 REV. INT’L STUD. 929, 937 (2011). 126. Mohammed Abu-Nimer, Conflict Resolution, Culture, and Religion: Toward a Training Model of Interreligious Peacebuilding, 38 J. PEACE RES. 685, 686 (2001). 127. Abrahamic faiths derive their prescriptions for human-to-human reconciliation from the reconciliatory relationship of God to humanity, be it embodied in the notion of covenant (Judaism), salvation (Christianity), or mercy (Islam). Daniel Philpott, What Religion Brings to the Politics of Transitional Justice, 61 J. INT’L AFF. 93, 97-98 (2007). A religious approach to reconciliation may make liberal human rights proponents uneasy, but it is not necessarily antithetical to human rights or democratic governance, and may in fact effectively combine transitional justice strategies that both punish offenders and encourage victims to practice forgiveness. Id. at 99. 128. See, e.g., Mohammed Abu-Nimer, A Framework for Nonviolence and Peacebuilding in Islam, 15 J.L. & RELIGION 217, 232 (2001). 129. The question of tolerance and the Arab-Islamic world is a much-discussed subject in contemporary media, particularly in a post-September 11, 2001 context. According to Khaled Abou El Fadl, the essence of the matter is a perceived “clash between Judeo-Christian civilization, with its values of individual freedom, pluralism, and secularism, and an amoral, un-Westernized, so-called ‘authentic Islam’ . . . associated with the ideas of collective rights, individual duties, legalism, despotism, and intolerance.” KHALED ABOU EL FADL, THE PLACE OF TOLERANCE IN ISLAM 3 (2002). Proponents of the existence of a clash of civilizations between “Islam” and the “West” (however fraught those categories are with ambiguity), stress the irreconcilable nature of the conflict due to Islam’s inherent intolerance and incompatibility with human rights and democracy. Any attempt to portray Islam or Arab-Islamic civilization as bearing hallmarks of tolerance is rejected by this view as a disingenuous liberal accommodation of Muslims, GEORGE WEIGEL, FAITH, REASON, AND THE WAR AGAINST JIHADISM: A CALL TO ACTION 118 (2007), or historical myth-making, Robert Spencer, The Myth of Islamic Tolerance, in THE MYTH OF ISLAMIC TOLERANCE: HOW ISLAMIC LAW TREATS NON-MUSLIMS 29, 40 (Robert Spencer ed., 2005). Responses to such a rejectionist view vary. Several scholars of Islam stress that articulations of non-violence and peace-building have emerged in an Islamic context or refute the argument that Islamic political culture is somehow conducive to human rights violations. Daniel Price, Islam and Human Rights: A Case of Deceptive First Appearances, 41 J. SCI. STUDY OF RELIGION, 213, 222 (2002). Others propose Islam’s theological openness to human rights and democratic rule, PAUL L. HECK, COMMON GROUND: ISLAM, CHRISTIANITY, AND RELIGIOUS PLURALISM 215 (2009); Islamic civilization’s moral trajectory toward an understanding of tolerance that encompasses rights, Abou El Fadl, supra at 23; or even a

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however, studies of both Muslim and Christian approaches to postconflict reconciliation suggest that religious peace-building is a common tool of transitional justice.130 To deny the possibility of Islambased peace-building reflects liberalism’s “conceit of neutrality,” or the presumption that a secular, Westernized understanding of tolerance is the only acceptable approach.131 In Syria, Islam is a reality of public life and will likely play a prominent role in any transition in Syria. The Islamic piety movement spread in Syria in the 1980s, morphing from a militant approach to a focus on da’wa, or proselytization.132 The regime attempted to co-opt and depoliticize the movement by employing a discourse of “moderate good Muslims” over “radical terrorist Muslims” and stressing the “culture of tolerance” in Islam in state rhetoric.133 Not all Muslim religious leaders complied with the political quietism demanded by the regime, however. Perhaps the most influential (though officially banned) political group in Syria is the Muslim Brotherhood, an Islamist organization whose history of suffering government oppression has given it legitimacy, while not sapping it of a willingness to work with other opposition groups or an openness to parliamentary democracy.134 Since the outbreak of the uprising in 2010, mosques have served as the vantage point for public protests, particularly after Friday prayers. ‘Ulama, or Muslim religious scholars, are divided on the revolution: some have defended the regime, while others (particularly those who interact with the protesters) have acted as moral critics of the violence

cross-cultural understanding of a common basis of tolerance in Islam and the West, AARON TYLER, ISLAM, THE WEST, AND TOLERANCE: CONCEIVING COEXISTENCE 157 (2008). 130. Compare Reinhard Henkel & Laura Sakaja, A Sanctuary in Post-Conflict Space: The Baptist Church as a ‘Middle Option’ in Banovina, Croatia, 91 GEOGRAFISKA ANNALER 39, 48 (2009) (locating the Baptist church as a site for cross-communal reconciliation among Orthodox and Catholics in the mixed Croat-Serb area of Banovina, Croatia), with Brett Dakin, The Islamic Community in Bosnia and Herzegovina v. the Republika Srpska: Human Rights in A Multi-Ethnic Bosnia, 15 HARV. HUM. RTS. J. 245, 262 (2002) (describing the victory of an Islamic organization in a Human Rights Chamber case that recognized its right to reconstruct a mosque that had been destroyed in the conflict; quoting an orthodox church official saying, “any sort of extremism is not in keeping with Orthodox religion and I understand Serbs . . . suffered [during the war], but they need to cool their heads. The mosque in Banja Luka did exist, which means if we destroyed it then we have to rebuild it. It is a sort of penance”). 131. BROWN, supra note 91. 132. Line Khatib, Islamic Revival and the Promotion of Moderate Islam from Above, in STATE AND ISLAM IN BAATHIST SYRIA: CONFRONTATION OR CO-OPTATION? 32 (Raymond Hinnebusch ed., 2012). 133. Id. at 33-34. 134. Raphael Lefevre, Hama and Beyond: Regime-Muslim Brotherhood Relations since 1982, in STATE AND ISLAM IN BAATHIST SYRIA, supra note 132.4

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the regime brutally metes out.135 Islam is already integral to the uprising in Syria, from locating protest sites to shaping the lexicon that activists and Islamist political actors employ. It remains to be seen what role Islamic discourse will play in relation to transitional justice schemes. Certainly as a discourse of power,136 Islam has the potential to stress both retributive and restorative forms of justice in Syria. One can imagine mosques (and churches for that matter) serving as sites for public truth-telling gatherings and development projects. Islamic conceptions of justice, punishment, mercy, and forgiveness will undoubtedly inform not only the rhetoric the new political leadership employs, but also the everyday conversations citizens have about transitional justice in Syria. V.

CONCLUSION

Early thinking about transitional justice in Syria has emerged from sites of protest on the ground in Syria to the highest halls of international power at the United Nations. While international actors have begun to reach the conclusion that an internationally crafted criminal tribunal is the best justice mechanism for Syria, the rationale for such a tribunal is increasingly rooted in an understanding of Syrian society as inherently sectarian, intolerant, and incapable of working toward justice without external direction. This understanding not only fails to take into account the historical complexities of faith, ethnicity, and national identity in Syria, but it also obscures the geopolitical agendas that drive the push for international trials—primary among them the weakening of the Shi’ite Syria-Iran-Hizballah alliance and the shaping of a Sunni counter-weight to the jihadist threat. The experiences of Iraq and Lebanon caution against this fusion of sectarian discourse and international criminal trials. In both countries, international trials backed citizens into communal identities and encouraged retribution over restoration. This is hardly a necessary outcome in Syria. Understood in a broader sense as providing local agents with the tools for realizing both justice and forgiveness, transitional justice can

135 Jawad Qureshi, The Discourses of the Damascene Sunni ‘Ulama during the 2011 Revolution, in STATE AND ISLAM IN BAATHIST SYRIA, supra note 132. 136. Talal Asad defines Islam as a discursive tradition that relates itself to the founding texts of the Qur’an and the Hadith. Talal Asad, The Idea of an Anthropology of Islam, CTR. FOR CONTEMP. ARAB STUD. (1986). Asad stresses that Islamic discourse is a power-laden construct, a tradition that seeks to establish orthodoxy, but that is also rational (reasoned) and capable of transformation without losing authenticity. Ovamir Anjum, Islam as a Discursive Tradition: Talal Asad and His Interlocutors, COMP. STUD. S. ASIA, AFRICA & THE MIDDLE E. 671 (2007).

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be a means to fostering reconciliation in the long-term. Externally manufactured solutions tied up in webs of power are less likely to be successful than justice mechanisms born out of a Syrian-owned process. Such a process will likely be built on a legacy of inter-communal life and revolutionary hopes for better governance and social justice. It will also likely be informed by religion, which need not be seen as part of the problem, but rather may be an integral part of healing in a war-ravaged nation.

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