The Writhing of the Battered Pharaoh: Egypt’s Geopolitical State
March 14, 2017
Turkish Foreign Policy Under the AKP Rule: The Limited Role of Turkey in Lebanon
April 10, 2017

Human Rights in Post-Revolution Constitutions: Perspectives for the Future of Syria – Part Three/Three

A constitution is a pivotal factor in the long-term success or failure of the democratic transition that a country has after passing through an uprising or civil war. Both cases were seen during the “Arab Spring” where some countries descended into an armed conflict like Syria while others reverted back to even more authoritarian regimes like Egypt. The notable exception and possible success story is Tunisia. A constitution alone is not enough to guarantee the success of such transition if not coupled with legislative reforms and practical changes in institutions and their methods of operation.[1] This series aims to offer an overview on the respect of human rights in the new Tunisian and Egyptian constitutions, their application on the ground, and attempt to project their successes and failures to the case of Syria and its future constitution whenever it will be written.

The reasons for the uprising in Syria in 2011 were not initially fuelled by sectarianism but were focused on political and social objections stemming from the failed economic reforms of Bashar Al Assad which led to social inequalities and poverty. The conflict cannot be divided over clear sectarian lines since hundreds of thousands of Sunnis support the Assad regime or took refuge in government controlled areas. This shows that there aren’t two cohesive sectarian groups fighting for control. Initial divisions were found among the same ethnicities, sects, areas, and families. Early activists immensely tried to portray the clash as one between impoverished rural masses, disenfranchised middle-classes, liberals, and youths against an authoritarian regime and its clients; however, this was eclipsed with the rhetoric which the regime and its allies promoted which portrayed the conflict as defense of Syria’s religious pluralism against Sunni religious extremism. Influential factions in the opposition also started to depict the struggle as a “Holy” one between a hostile Alawite rule against majority Sunni Islam.[2]

This rhetoric puts the regime in a positive light among the minorities living in Syria and the liberal Sunnis who fear a turn towards religious conservatism. This was exacerbated by the release of militant jihadists from prison by the regime and the formation of Alawite dominated militias to “support” the army. On the other hand, protests with a clear Sunni religious purpose started appearing in parallel with the non-sectarian civic protests of the opposition. These factors, among others, played a role in inflaming sectarian tensions; however, the origins lie in the ruling practices of the Syrian regime over five decades – all under a façade of secularism.[3] The most important positions in the armed forces and security apparatus are assigned to Alawites loyal to Assad which makes them more willing to use coercive force against dissidents and greatly diminishes the chance of high ranking defections. This was coupled with the formation of informal networks of non-state actors, commonly referred to as shabiha, who are recruited based on familial ties or sectarian belonging to perform illegal acts without being held accountable. These groups were incorporated into the regime’s security apparatus after the war erupted and have been accused of committing the worst atrocities of the conflict. Their main roles are the protection of the Alawite areas, other minorities, brutalizing Sunni communities, and assisting the army when needed. A third example is the deployment of thousands of Shiite fighters from Iran and Hezbollah in support of the Assad regime which fueled the sectarian dimension of the war.[4]

On the opposite side of the spectrum, opposition groups have been far from being a reliable alternative due to the huge divisions among them and the different ideological belongings. The Syrian Coalition, the opposition leadership residing outside of Syria, has repeatedly called for a civil democratic state, but their influence on the ground is limited. The Free Syrian Army, a very loose network of defected army members, is not unified under a common leadership and are scattered all over the country. The remaining opposition groups, which are the most unified and one of the strongest on the ground, are Ahrar Al Sham and Jabhat Fateh Al Sham (formerly known as Al Qaeda linked Al Nusra Front). They adopt a strict interpretation of Islamic law, have been accused of crimes similar to those committed by the regime, and have intensified the sectarian rhetoric of the conflict. The remaining forces are the Kurds who have become a very strong player in the conflict and adopt a democratic vision; however, their main aim is to have an autonomous Kurdish zone and have been accused of ethnic cleansing of Arabs in the areas that they liberate from the Islamic State.[5]

A quick look at the actions of both the Assad regime and factions of the opposition clearly indicate that everyone has been involved in serious human rights abuses such as indiscriminate attacks on civilians, torture, arbitrary detention, and summary executions. Some of the main tactics adopted by the Assad regime involve the excessive use of barrel bombs that are dropped from helicopters, use of cluster munitions, repeated airstrikes on residential areas, the use of chemical weapons, and sieges aiming at starving the populations of opposing areas into submission. On the other hand, Jabhat Fateh Al Sham, formerly known as Al Nusra Front, has imposed strict discriminatory regulations on women through Sharia courts, is actively involved in the recruitment of child soldiers, and has taken credit for lethal car bomb attacks targeting civilians. Other opposition groups, ranging from Islamic to moderate, are also involved in indiscriminate shelling of civilian neighborhoods, armed sieges, sectarian abductions, crackdown on critics and human rights defenders, and the use of schools for military purposes thus putting children a risk. A final main actor is the Kurds who control a large coherent region in Northern Syria. In spite of forming councils similar to ministries and introducing a new constitutional law, they have been accused of several violations, most notably the forced displacement of Sunni Arabs from the areas that they liberate from ISIS as well as the confiscation of property and burning of homes.[6]

One important aspect of governance in opposition areas is the participation of people in electing their local leaders. In spite of far from perfect conditions, new institutions related to justice, economic development, and human rights have been founded. As of March 2016, there has been an estimated 395 active local councils in the country. These local councils could form the nucleus for any local administration in a post-conflict decentralized Syria.[7]

In spite of the deep divisions among the Syrian population, all competing factions, except the Kurdish forces, still publicly recognize the need for a central state in control of all the Syrian territory. This is partly related to the economic interdependence between the different parts of the country which remains until now, even if at a lower level than before. For example, goods such as oil and cereals are still transferred from the east to densely population western areas. This also applied to an ISIS controlled plant delivering gas to regime and opposition areas through a deal brokered by a middleman. Another factor is the need for certain state functions; while local councils have been able to perform some services, they are still lacking in certain tasks which the state must fulfill. In spite of the regime clearly calling for a state in control of all the Syrian territory, it is becoming clear from the balance of power that a new system of governance has to be adopted with varied degrees of decentralization not determined yet.[8]

After five years of conflict, there have been trends of sectarian cleansing characterized by the large population affected by internal displacement. Neighborhoods that were inhabited by Sunnis, Alawites, Christians, and others have now become single-sect areas due to the massacres that have taken place and the fear of being targeted. Similar events occurred in Iraq and Lebanon leading to almost irreversible changes in the demographic distribution.[9] This scenario is being played out recently where areas abandoned due to war are allegedly being repopulated but with people different than those who fled in the past years. The valleys bordering between Damascus and Lebanon used to be predominantly inhabited by Sunni Muslims; however, newly settled families are Shiite Muslims, not only from Syria, but also from Lebanon and Iraq. They are allegedly supposed to be the vanguard of a move to repopulate the areas with Shiite Muslims. Such actions aim at clearly dividing the country into zones of influence along sectarian lines. This move, reportedly backed by Iran, aims at reinforcing Hezbollah’s stronghold in Northeastern Lebanon and maintains Iran’s path from Tehran to the Mediterranean shore. This selective resettlement is considered to be the first of similar moves to be conducted in the future along the southern areas of Damascus and in the Alawite heartland where Assad enjoys most of his support. A similar move was seen in Daraya, south-west of Damascus, where 300 Iraqi Shiite families moved within days into the neighborhoods evacuated by rebel forces following a 4 year siege[10]. This is coinciding with systematic torching of Land Registry offices to destroy proof of land ownership, intimidation of residents, starvation sieges by the Assad regime leading to the transfer of residents in local ceasefire agreements, demolition of homes, and buying land… Whether this strategy will continue to be implemented and on a larger scale remains to be seen. If yes, then  the aim will be to  create a contiguous homogeneous area around what is referred to as “useful Syria” which ensures the survival of the Assad regime, maintains Iran’s influence, and preserves Tehran’s corridor to Hezbollah in case any form of federalism or partition is adopted as a solution to the Iraq and/or Syrian conflict.[11]

In spite of the fact that religion is not the primary catalyst of the conflict, it is one of its causes and is keeping it going. Religion is part of the identity of the Syrian communities, whether it is Sunni, Shiite, Alawite, or Christian…, and the political use of religious belonging is easily seen with the rhetoric of the Assad regime in which it acts as the protector of the minorities living in Syria from the rising tide of extremism in the region. Identity also plays a crucial part in the political and military aims of the Kurdish population which emphasizes ethnic rather than religious belonging.[12]

A significant number of people have expressed willingness to accept going to back to the old combination of coercion and co-optation just to regain a sense of normalcy and stability; however, even this is becoming increasingly difficult with the rise of communal politics and sense of belonging that has been slowly forming for the past decades and erupted with the Arab Spring.[13]

Several scenarios could take place before the war in Syria ends. One scenario is a clear military victory for one side over the other which seems unlikely within the current local, regional, and international balance. The Assad regime does have the advantage following the battle of Aleppo; however, the war is still far from being decided. Even in such victories, defeated opposition groups could still regroup and rely on guerilla tactics which shows that it’s almost impossible for Assad to rule Syria in the same manner that he did in the past. Another scenario is the direct intervention of an international power to guide one side to total victory. A similar attempt was seen by Russia, but it was evident that the purpose was limited to tilting the balance of power in favor of Assad. A third scenario is a negotiated settlement between the major sides in the conflict. This does need admittance from the conflicting sides that neither can achieve a military victory over the other. A fourth scenario is to partition the country, whether explicitly or implicitly done, where a weak central government exists along with autonomous zones, divided along sectarian and ethnic lines. Of these four scenarios, the last two, or a mixture of them, seem the most realistic at the moment.[14]

Supporting an authoritarian regime under the pretext of the necessity of the use of force to properly manage deeply divided societies will aggravate the tensions and intensify an inevitable revolt. Blaming sectarian violence on the regime’s tactics and thinking that once the conflict is over all Syrians will go back to peacefully living together in an environment of multi-religious tolerance is very simplistic. Unless an unlikely decisive military victory is achieved by either side, Syria is going to be divided along sectarian identities and areas where mobilization is achieved along these lines to maintain power.[15] This is coupled with the fact that it would be very difficult for local militias to accept handing in their weapons to a state controlled by the Assad regime thus limiting the ability of a unified government to yield control over all of Syria, both militarily and politically. These factors, combined with the deep sectarian and ethnic divisions that exploded during the past years, will provide huge importance for local governance in any post-war scenario.[16]

There have been some warnings regarding the pitfalls of the “Lebanonization” of Syria through the institutionalization of sectarian and ethnic divisions which could help in the short-term resolution of the conflict but leads to more conflicts in the future. The cases of Lebanon and Iraq where sectarian identity becomes the only way of representation in government led these identities to be stronger than the national one; in addition, this has weakened the state in favor of non-state actors, some of whom are military powers like Hezbollah. Such system was meant to provide representation to all communities in the country but ended up causing tensions and marginalization due to the cooptation of state resources by communal leaders. Even though consociational democracy is theoretically supposed to provide proper representation for all religious and ethnic groups, but its application has fallen very short from the desired results. Under the pretext of the protection of sectarian rights, communal leaders have exploited these sentiments to cement their grip on power of their respective communities and to prevent democratic change. Such representation, if adopted, could also neglect the differences present within each sect since there are Sunnis who support Assad, others who support the Islamist opposition, and others who support secular opposition groups. A certain balance has to be found where minority rights can be guaranteed without being an obstacle to the development of a sense of citizenship and a strong state.[17]

A beginning towards the protection of human rights in post-conflict Syria must include a deep reformation of the security sector, to the extent of the dissolution of the current security institutions and their replacement by fully accountable ones. This is crucial for the rebuilding of community relations, the regaining of trust in the state by civilians, and the attainment of long term stability.[18] On the other hand, a similar step was adopted in Iraq following the US invasion where the security apparatus was dissolved and Baath members were banned from participating. This led to deterioration in the security situation and culminated with the brutal conflict seen today. A middle ground has to be found to avoid the repetition of the same scenario in post-conflict Syria where deep reforms and measures of accountability are implemented without the complete dismantling of the security system that could lead to disastrous consequences.

Some of the main factors of the reform that have to be taken into consideration are providing a secure environment for the Syrian population where they can freely exercise their political and cultural freedoms, detaching the security services from politics, providing professional training to the security sector, establishing civil-military relations based on democratic principles, respect for human rights, and holding violators accountable.[19] These reforms must also coincide with the release of political detainees, aid workers, journalists, and human rights activists imprisoned throughout the country by different factions.[20]

An independent judiciary is one of three pillars of any functioning democratic state and the actions of the future judges of Syria will be a major indication of the degree of success of accountability and peace. During the ongoing conflict, judicial councils are found in both regime and opposition held areas; however, the legal proceedings vary greatly depending on the military faction in control. What is critical for the effective role of the judiciary in post-conflict Syria is the degree of independence and transparency. Current high ranking judges have close ties to the Assad regime and their continued presence in their posts is a hurdle to the process of judicial reforms; however, lower rankings judges in Assad-controlled areas could be reintegrate if they have credible records against political detention and extrajudicial killings. The reformation of the judicial sector should be done very carefully to ensure that justice and equality will be upheld. A strong judicial power will be key to providing stability and ruling in sensitive cases such as reparations, truth seeking, and supporting civil society during the crucial transitional period.[21]

Regardless of the type of settlement which will end the Syrian conflict, accountability for the crimes committed during the war by both sides would be extremely difficult and would hamper the peace process especially if the leaders during the war period will also be the leaders of the political future of Syria. Because of the impossibility of reaching an end to the conflict without including those exerting military control on the ground and subsequently the limitations of putting them to trial, a necessary step for the healing process of the divided and hurt Syrian people would be the establishment of a reconciliatory committee (similar to that of South Africa) so that past wounds are addressed to avoid the culmination of hatred and the need for revenge.[22]

The other course of action, albeit less likely, can manifest itself in several forms. One is the relying on domestic courts to put to trial those accused of crimes during the conflict. It must be pointed out that the Syrian Penal Code is deeply flawed and lacks basic human rights protections as well as a judiciary whose independence is highly questionable. On the other hand, the Syrian Penal Code does codify many laws similar to those found in international laws such as those related to murder, torture, and some portions of the Geneva Conventions. Even though far from perfect, it does offer the possibility to the Syrian people for sovereign control over the transitional justice process in their country after the conflict. It could also highlight the need for reforms in the law and bring about them in the future. Another is the establishment of a regional or international ad-hoc court with representation of different regional and international countries. A final possibility is the referral of the conflict to the International Criminal Court by the United Nations Security Council which would require the acceptance of both the USA and Russia since they have the power to veto the decision. This is almost impossible since it could lead to the Syrian allies of the major powers to be put on trial and possibly convicted.[23]

A just solution for Syria should be based on the establishment of democratic politics and majority political representation which would lead to moving away from minority oligarchic rule. This should coincide with political and cultural equality for all societal groups that would lay the foundation for the development of a sense of citizenship. Such a step would provide adequate representation for all segments of the population while opening the door for political evolution of identities and limiting the possibility of future violent conflict. A majority rule does not indicate a Sunni one, who are far from being a homogenous group, but rather a cross-communitarian one. Islamists will aim to sectarianize and unify Sunnis under one label, but that is unlikely to happen and would lead to a minority rule within the Sunni community. The strong presence of Islamists within the current opposition and the diverse population of Syria have led to calls for the protection of minority rights. One of the proposals was a sectarian quota system; however, this system would be based on the demographic percentages thus providing the Sunnis with a two-thirds majority. On the other hand, these two-thirds are not united in their ideological views so the only way to actually earn a majority would be through alliances with non-Sunni and non-Muslim populations. This will guarantee the absence of hegemony of one group that excludes other minorities, but it could pose a threat to the growth of non-sectarian parties which are likely to appear after the conflict is over.[24]

The war has led to sectarian divisions, regional divisions between the city and the countryside, and ethnic divisions as well. All these polarizations will complicate the landscape of representation in post-conflict Syria.[25]

The fact that the support base for Islamist groups increases when they defend or fight against the Assad regime while it diminishes when they attempt to impose their social model on residents shows that the population’s beliefs are different than the leaders of these groups and are willing to resist it after the conflict ends.[26]

The sectarian quota system which aims to guarantee political representation to tall communities, whenever implemented, has had a negative result; however, this does not mean that its purpose shouldn’t be aimed for which is why an alternative method is the establishment of a higher institution, like a Senate, which guarantees the quality of all communitarian groups while allowing for the formation of cross-sectarian and cross-regional identities.[27]

An effective political solution has to take into consideration the results of the five year conflict. Wartime structures and institutions that maintain security and provide goods and services have earned legitimacy in the eyes of the population.[28] Coupled with the current military divisions on the ground and the trajectory towards a settlement for the conflict, a homogenous centralized government isn’t really an option. What is needed is greater decentralization where local populations are involved in the governing of their areas. The aim of such solution is to rebuild the population’s trust in the government, reestablishing state structures, and reintroducing the concept of national identity.[29]

The constitution, due to the need for a compromise between all conflicting parties, will not be a perfect one and loopholes are expected to be present; however, this must not come at the expense of securing a good basis that one can build upon in the future while moving forward. The negotiating parties shouldn’t exploit their position to guarantee and strengthen their position in power in post-conflict Syria because in doing so, they will be shutting the door on democratic representation and thus endangering the prospects of long-term stability.

The war-mindset of winner takes all must be abandoned once a peaceful settlement is reached because not one party can rule alone. Forming coalitions is the only way forward because excluding any part of the population could reignite the conflict. This should also apply within each communal group as well.

The calls for protection of minority rights, whether religious or ethnic, are legitimate especially in a society with strong communal identities, but this should be provided through a specific legislative body, possibly a bicameral system with a Senate, and should not encircle the whole functioning of the state. What is even more important is allowing parties with a cross-sectarian ideology to break through these communal barriers because developing a strong sense of citizenship, regardless of religion, is the only way that a national identity can be regained.

A key lesson learned from the Tunisian and Egyptian experiences is the importance of the role of a strong civil society in monitoring the transitional process and keeping it on the correct course which is why these organizations should be protected first and foremost by the judiciary and allowed to function freely. Another lesson is the importance of the application of the constitution and its translation into meaningful reforms in all governmental institutions, ranging from legislation to security sector reform.

The army and intelligence apparatus should be sidelined from the political scene so that they don’t go through the same path as Egypt. Even if sporadic terrorist attacks continued to occur by certain factions who do not support the terms of the settlement, this must not be used as an excuse for a “temporary” suspension of rights and a crackdown against opposition under the pretext of maintaining stability.

The wounds and divisions caused by the war will take years to heal and proper democratic representation will not be directly achieved; however, starting from the right place makes all the difference.

[1] Klibi, S. (2015) Implementing Tunisia’s New Constitution Requirements and Roadmap, Constitution Net, Retrieved from http://www.constitutionnet.org/news/implementing-tunisias-new-constitution-requirements-and-roadmap

[2] Wimmen, H. (2016) Syria’s Path from Civic Uprising to Civil War, Carnegie Endowment, Retrieved from http://carnegieendowment.org/2016/11/22/syria-s-path-from-civic-uprising-to-civil-war-pub-66171

[3] Ibid.

[4] Heydemann, S. (2013) Syria and the Future of Authoritarianism, Journal of Democracy, Volume 24, Number 4, pp. 65-68

[5] Heydemann, S. (2013) Syria and the Future of Authoritarianism, Journal of Democracy, Volume 24, Number 4, pp. 68-70

[6] HRW (2015) Syria Events of 2015, Human Rights Watch, Retrieved from https://www.hrw.org/world-report/2016/country-chapters/syria; Amnesty, (2016) Syria 2015-2016, Amnesty International, Retrieved from https://www.amnesty.org/en/countries/middle-east-and-north-africa/syria/report-syria/

[7] Yazigi, J. (2016) No Going Back: Why Decentralization is the Future for Syria, European Council on Foreign Relations, Retrieved from http://www.ecfr.eu/page/-/ECFR185_-_NO_GOING_BACK_-_WHY_DECENTRALISATION_IS_THE_FUTURE_FOR_SYRIA.pdf

[8] Ibid.

[9] Olmert, J. (2012) The Syrian Civil War and the Demographic Changes to Expect, The World Post, Retrieved from http://www.huffingtonpost.com/dr-josef-olmert/syrian-civil-war-demographics_b_1833672.html

[10] Picali, E. (2016) Together with its Allies The Syrian Regime is Forcing Demographic Change in Areas of the Country for Self Protection and Self Preservation, Middle East Media Research Institute, Retrieved from https://www.memri.org/reports/together-its-allies-syrian-regime-forcing-demographic-change-areas-country-self-protection; Chulov, M. (2017) Iran Repopulates Syria with Shia Muslims to Help Tighten Regime’s Control, The Guardian, Retrieved from https://www.theguardian.com/world/2017/jan/13/irans-syria-project-pushing-population-shifts-to-increase-influence

[11] Ibid.

[12] Philpott, D. (2013) The Role of Religion in Post-Conflict Syria, Council on Foreign Relations, Retrieved from http://www.cfr.org/syria/role-religion-postconflict-syria/p31050

[13] Sayegh, Y. (2015) Crisis of Arab Nations States, Al Hayat, Retrieved from http://www.alhayat.com/Opinion/Writers/12225531/

[14] O’Hanlon, M. (2015) How will Syria’s War End Other Civil Wars Suggest an Answer, The Washington Post, Retrieved from https://www.washingtonpost.com/posteverything/wp/2015/09/03/how-will-syrias-war-end-other-civil-wars-suggest-an-answer/

[15] Wimmen, H. (2016) Syria’s Path from Civic Uprising to Civil War, Carnegie Endowment, Retrieved from http://carnegieendowment.org/2016/11/22/syria-s-path-from-civic-uprising-to-civil-war-pub-66171

[16] Wittes, T. (2016) War in Syria Next Steps to Mitigate the Crisis, Brookings Institution, Retrieved from https://www.brookings.edu/testimonies/war-in-syria-next-steps-to-mitigate-the-crisis/

[17] Khatib, L. (2015) Sectarianism is not a Solution for Syria, Al Hayat, Retrieved from http://www.alhayat.com/Opinion/Writers/9153280/

[18] Wimmen, H. (2016) Syria’s Path from Civic Uprising to Civil War, Carnegie Endowment, Retrieved from http://carnegieendowment.org/2016/11/22/syria-s-path-from-civic-uprising-to-civil-war-pub-66171

[19] Humphries, V. (2012) Planning for SSR in a  Post-Assad Syria, Security Sector Reform Resource Centre, Retrieved from https://www.ssrresourcecentre.org/2012/10/12/planning-for-ssr-in-a-post-assad-syria/

[20] Amnesty (2017) Makes Human Rights Priority of Geneva Talks, Amnesty International, Retrieved from https://www.amnesty.nl/actueel/syria-make-human-rights-priority-of-geneva-talks

[21] SJAC (2013) Who’s to Judge The Future of Syria’s Judiciary, Syria Justice and Accountability Centre, Retrieved from https://syriaaccountability.org/updates/2013/05/07/49855185394/

[22] Philpott, D. (2013) The Role of Religion in Post-Conflict Syria, Council on Foreign Relations, Retrieved from http://www.cfr.org/syria/role-religion-postconflict-syria/p31050

[23] Grden, E. (2014) Syria The  Role of National Law in a Post Conflict State, Michigan Journal of International Law, Retrieved from http://www.mjilonline.org/syria-the-role-of-national-law-in-a-post-conflict-state/

[24] Al Haj Saleh, Y. (2016) Majoritarian Syria Justice in Conflict Resolution, Al Jumhuriya, Retrieved from http://aljumhuriya.net/en/syrian-revolution/majoritarian-syria-justice-in-conflict-resolution

[25] Ibid.

[26] Ibid.

[27] Ibid.

[28] Serwer, D. (2016) What Syrians Can Expect in a Post War Landscape, Syria Deeply, Retrieved from https://www.newsdeeply.com/syria/articles/2016/09/30/analysis-what-syrians-can-expect-in-a-post-war-landscape

[29] Supra note 23

Jimmy Matar
Jimmy Matar
Jimmy Matar earned a BA in International Affairs and Diplomacy at Notre Dame University Louaize. His work focuses on Islamism in general, and jihadist groups in particular; in addition to their direct role in the Middle East. He is a fellow researcher in the office of Islamists in the Middle East Institute for Research and Strategic Studies (MEIRSS) based in Lebanon. Furthermore, he is active in several NGOs focusing on Human Rights and interreligious dialogue.