Key principles and considerations
While there is a general understanding of the main mechanisms of transitional justice, implementation typically varies from one country and community to another. This is mainly due to variations in the type and scale of violations committed in each conflict, the objectives of the particular transitional justice process, the type and sequencing of the mechanisms involved, and the resources available. Such processes can only be successful if they are tailored to, and based on comprehensive and inclusive consultations with, the communities involved.
Authority
In northeastern Syria, the ability of truth commissions to provide an accurate and comprehensive report will depend on the investigation of all crimes associated with the rise of ISIS, whether committed by the group itself or by others during the fight against it. The commissions should have free and full access to all ISIS members, both locals and foreigners, in the custody of the regional administration. That includes those in collective detention centres as well as in maximum-security prisons. The commissions should also be allowed to interview the families of ISIS members, as well as IDPs who live in camps or unofficial settlements.
The truth commissions should have the authority to investigate crimes allegedly committed by the SDF and the US-led international coalition during the fight against ISIS. Such authority should cover the military operations to retake territories from ISIS, as well as the security operations against sleeper cells or ISIS members. To have accurate data, the commissions should have full access to the records of military and security operations against ISIS. Similar access to the records of terrorism courts and reconciliation deals should be granted to the commissions. The commissions should be able to interview members of the SDF and other internal security forces implicated in human rights violations.
Independence
While the autonomous regional administration can support and contribute to post-ISIS transitional justice, the process itself has to be handled independently. This is partially due to the local defiance in former ISIS-held territories vis-à-vis the administration. Communities in Arab-majority areas, such as Raqqa and Deir ez-Zor, generally reject the governance structure established by the administration, as it does not allow them to be in charge of running their localities directly.49
Ensuring that the administration does not control or have authority over the transitional process is also essential for its legitimacy. While the self-government system in the region theoretically allows communities to rule themselves, in practice the administration is using its authority to impose extensive and centralized control over governance, political and military bodies in Arab-majority areas.50 Any transitional justice process that is established under the control of the administration will thus likely make people suspicious and less keen to participate. Besides, the SDF is also accused of committing crimes during and after the fight against ISIS; excessive involvement by the regional administration in transitional justice arrangements would likely increase popular perceptions of bias, and reinforce assumptions that its agenda is to protect itself.51
Ensuring that the administration does not control or have authority over the transitional justice process is essential for its legitimacy.
Instead, the process should be led by community leaders and influential figures who are known to be independent, credible and respected. This could help mitigate the lack of trust towards official authorities, lend legitimacy to the process and increase popular participation.
The principle of independence (including the impartiality of truth commissions) should underpin prosecution and reconciliation deals. Evidence collected by the truth commissions should be shared with courts, after addressing the gaps discussed above, to build cases against ISIS members alleged to have committed crimes. The commissions should be able to coordinate with the courts to reduce the sentences of convicted ISIS members who provide credible and relevant confessions, as this could encourage the disclosure of crucial information. Reconciliation deals could also be made conditional on beneficiaries providing evidence in front of truth commissions.
Transparency
Establishing clear, accessible and efficient communication channels to keep stakeholders informed about the objectives, mechanics and progress of transitional justice will be important for increasing trust. Due to the current lack of popular trust in the regional administration, locals should be informed about the extent of the latter’s involvement in and authority over the process. Transparency about the dynamics of this relationship could enable the team leading the process to use public support to insulate itself from external pressure.
Local communities should have access to the proceedings of terrorism courts, including details of which ISIS members are being prosecuted, the charges against them, findings and verdicts. Similarly, they should be informed of which members are released through reconciliation deals or individual amnesties, and of the criteria that qualified these people for such treatment. While victims of ISIS are not currently receiving compensation, the criteria that will be used to assess who qualifies for reparations – and how the type and scale of reparations are determined – should also be made public.
Truth commissions should be clear about how information will be collected, what it will be used for, who will have access to it, and whether it will be made public or not. To that end, it will be crucial to inform local communities about the objectives and limitations of the transitional justice process, to ensure realistic expectations. Providing the public with regular and digestible updates is also important to ensure people remain engaged.
Due process in prosecutions
The actors involved in efforts to secure justice for ISIS victims should treat the group’s members according to international law. As mentioned above, the terrorism courts do not currently provide due process to ISIS members. In order for that to change, the courts should allow suspects to hire defence lawyers and to challenge the evidence against them. ISIS members who are convicted should have the ability to appeal against their sentences in front of a different court.
Likewise, military and security forces should not be allowed to detain or keep suspects in custody when evidence is absent or inadequate. Confessions given under torture should not be used as evidence. ISIS members’ family members who are unlawfully detained should be released if charges against them cannot be filed. Non-judicial measures could still be used, when appropriate, to serve justice.
Lack of expertise in the legal system remains a key challenge. The staff of terrorism courts, among others, should be trained how to investigate and prosecute ISIS members in accordance with due process under international law. Implementing a non-discriminatory approach to justice can help break the cycle of violence by preventing ISIS from using grievances over the mistreatment of its members and their families as a recruiting tool.
Agency for victims
Ensuring the centrality of ISIS victims in the design and implementation of any transitional justice process will be crucial to its success. To that end, consultations with local communities should be conducted with an explicit focus on those communities and traditionally excluded groups (such as women, IDPs, children), using the needs and priorities of these stakeholders to shape the process.
This will require using victim-sensitive mechanisms to ensure that victims’ voices are heard. Those running the process should be trained in protecting the dignity, anonymity and safety of victims. Ensuring safety is of particular importance, as many ISIS victims might be scared to participate due to fear of retribution. Actors involved must mobilize victims and encourage them to contribute to the process. This includes facilitating the creation of survivors’ groups and supporting such groups in playing an active role.
On top of being allowed to participate in court proceedings, victims should play an essential role in selecting the mechanisms through which transitional justice is dispensed, such as determining the preferred types of compensation and healing programmes.
Civil society participation
In contexts such as northeastern Syria, where the capacity of official institutions is low and mistrust towards local authorities high, civil society groups can become more active in leading the transitional justice process. Since the start of the uprising, Syrian civil society actors have been familiarizing themselves with the concept and tools of transitional justice. They have been building the capacity of groups and organizations across the country. Likewise, they have organized community-based activities to raise awareness among locals of the importance of the process and their participation in it.52 Other organizations have worked on documenting human rights violations committed during the conflict.53
In order to cooperate with the administration without losing their credibility, civil society organizations need to have protection guarantees and space to operate independently.
While most of the work has been done outside northeastern Syria in preparation for a national post-conflict process, the knowledge and expertise gained by those involved can assist in tailoring transitional justice mechanisms for ISIS violations, as well as in monitoring the prosecution of the group’s members. However, in order to cooperate with the administration without losing their credibility, civil society organizations need to have protection guarantees and space to operate independently. For that to happen, the administration should change its laws to allow civil society groups to operate freely, including those not aligned with its political agenda.
Actors involved in transitional justice should also draw on and coordinate with relevant community-led initiatives. These could include groups such as the Coalition of Families of Kidnapped by ISIS, an organization established in March 2019 by families to learn what had happened to missing relatives.54 Inclusion of such groups could contribute to the process of providing information, mobilizing other victims to give evidence, and monitoring implementation and progress.
49 Haid (2018), Reintegrating ISIS Supporters in Syria: Efforts, Priorities and Challenges.
50 Author interviews via WhatsApp with several residents from Deir ez-Zor and Raqqa, July–October 2019.
51 Author interview via WhatsApp with a human rights activist in Raqqa, June 2019.
52 Haid, H. (2017), Towards Tangible Actions for Transitional Justice in Syria – Where to go from here?, Heinrich Böll Stiftung, October 2017,
https://lb.boell.org/sites/default/files/transitional_justice_paper_final.pdf (accessed 15 Jan. 2020).
53 Ibid.
54 Human Rights Watch (2019), ‘Reveal Fate of Missing Victims of ISIS’.