Posted by Matthew Barber on Saturday, June 8th, 2013
Let ‘Lawfare’ Shape the Conflict, Not the Flow of Arms
By David Falt for Syria Comment
If we fail to act swiftly, the decision to lift the arms embargo will most likely backfire and serve only to fuel the opposition’s existing frustration with the international community.
The European Union put a lot at stake last week when they decided to lift the weapons embargo following desperate pleas from both the armed opposition in Syria and the Cairo-based political opposition. The big question remains: what practical difference will this make? It’s easy to argue that this move has come too late and with too many strings attached to impact events on the ground. At this point, it seems likely that the only sentiment the disparate opposition groups share is the sense of being left alone with empty promises.
However, the decision to arm the opposition is but one of several pivotal steps the international community can take in order to help the opposition topple the existing regime. A natural and prudent course of action now would be to help the interested parties engage in the process of implementing a transitional justice platform as a tool for conflict resolution: a strategy we call ‘lawfare’.
Traditional Transitional Justice vs. ‘Lawfare’
What do we mean by transitional justice? The International Center for Transitional Justice (a New York-based non-profit specializing in the field) defines transitional justice simply: ‘an approach to achieving justice in times of transition from conflict and/or state repression.’ The traditional concept of transitional justice refers to a variety of judicial and non-judicial measures such as war crimes tribunals, truth and reconciliation commissions, lustration, and reparations. Such measures are combined to form a larger effort to promote the reconstruction of fractured societies by establishing the rule of law and encouraging access to truth.
That said: you can now forget the traditional concept of transitional justice. Rather than a set of post-conflict tools aimed at cementing lasting peace and national reconciliation, our vision of transitional justice utilizes ‘lawfare’ as a tool in a carrot-and-stick approach to resolve the conflict. While ‘lawfare’ has its roots in transitional justice and adopts many of the same concepts, there is a crucial distinction: whereas transitional justice mechanisms typically take root in a post-conflict setting, ‘lawfare’ focuses on pragmatic immediacies such as targeted prosecutions and the encouragement of regime defections in order to facilitate conflict resolution itself.
We have been working with opposition leaders for months securing buy-in for this approach. Back in the fall of 2012, Dr. Jason McCue introduced a ‘lawfare’ plan that was very well received in both government circles and among opposition groups. Washington Post columnist David Ignatius also came out strongly in favour of the initiative.
One critical factor that has slowed the process of going live with a comprehensive ‘lawfare’ plan is the lack of international coordination. Right now, several disparate projects which approach the conflict from the wider prism of traditional transitional justice are floating around, but they lack the necessary focus to get sovereign donors’ attention. We have spent most part of the last year carefully selecting participants to form a consortium of experts, led by Dr Jason McCue and Toby Cadman from UK based Omnia Strategy, which can be recognized by the international community and Syrian opposition leaders as the appropriate platform to consolidate and implement the various aspects of a transitional justice programme.
Unity Will Lead to Recognition
There is also an urgent need to unify the fragmented opposition into a cohesive and effective representative group that is widely acknowledged as the de facto transitional government with both domestic and international capability and capacity. Progress has been made recently in Aleppo, where the technocrat Yahia Nanaa has been elected chairman of “the Local Council of Aleppo and is working hard to prop up civil service institutions. So far, however, this has been the exception and not the rule. It remains to be seen whether the Syrian National Coalition can develop into a cohesive transitional government that can attract the full recognition and support of the international community.
The opposition is united in victimhood and their universal will to seek justice for the actions of the Assad regime. To curtail further bloodshed, the opposition knows it must now find a way to unify Syrians on more than the sole dynamic of anti-Assad sentiment; it must garner international support and entice more members of the regime to defect from it. Opposition unity extending beyond the anti-Assad dynamic is sadly lacking—understandable during a revolution—but now is the time to build unity through other dynamics, and justice is a universal concept that unites any and all opposition.
To this end, further war crimes and crimes against humanity must be deterred through fear that the sword of justice will be used and, in fact, is being used against transgressors. One cannot simply talk about justice; it must be done. On the other side of the sword, those who have not committed war crimes will find assurance in the strength and protection of the ‘lawfare’ system, which will impart the needed confidence to break with the regime. The sword of justice must be unsheathed to prevent the conflict from escalating any further by enabling the assimilation of the regime—top to bottom—into the opposition.
The Question of Arms
It is unlikely that we will see an instant flow of weapons to the Syrian National Coalition, and even less likely that we’ll see it land in the hands of the Free Syrian Army. The Cairo-based opposition is under tremendous pressure to help fighters inside the country (in part to buy themselves political capital for the future), but to date they have struggled to meet basic expectations. If the external opposition is going to play any role in shaping Syria’s future, they need to prove that they are doing more than holding meetings in Doha’s expensive hotels. However, without a solid transitional justice plan in place, simply facilitating arms transfers is a deficient approach that poses serious risks.
In a meeting I hosted in January between top Syrian National Coalition representatives and key EU diplomats, I was shocked by the laissez faire attitude the parties displayed concerning the legal issues surrounding arming the FSA. It was not at all evident from that meeting that the parties agreed on the need to arm only the vetted FSA commanders operating under General Idris; all that was clear was that ‘all avenues should be explored.’ Alarmingly, what was also apparent from various parallel meetings was that the Coalition representatives were prepared to sidestep any existing boundaries or legal implications that such arms would involve. The international community is thus faced with very good reasons to tread carefully in the arming of the opposition, and all such efforts ought to be linked to the implementation of a credible and pragmatic framework of transitional justice.
The simple argument for providing weapons to the opposition is that it will serve as a carrot and a stick: a carrot for the opposition to participate in negotiating with the regime, and a stick for the regime to do the same. We believe that ‘lawfare’ works according to the same dynamics, but with distinct advantages: 1) it is neutral, and 2) it visibly targets key regime figures and supporters, speeding up the regime’s inevitable fall.
Additional Advantages of Establishing a ‘Lawfare’ Programme
In addition to facilitating an end to the conflict, establishing a ‘lawfare’ programme would deter future crimes as well as avert vengeful retaliation for crimes already committed. Establishing a system of tribunals to hear cases and punish criminals provides an alternative method of dealing with miscreants and discourages vigilantism. It strikes a statesmanlike blow to Assad by providing a legitimate alternative to ‘Assad’s justice’, which by its very nature demonstrates how his regime has failed.
A ‘lawfare’ programme will deliver an all-inclusive Syrian process designed to protect all Syrians, including minorities, through justice and the rule of law. By demonstrating a basis for the rule of law going forward, it appeals to potential defectors by building the courage of regime members to switch sides.
In addition, transitional justice provides a buffer against counter-revolution and post-conflict insurgency because its founding purpose is to facilitate and empower peace and reconciliation. Its implementation is thus a bold statement by the Syrian opposition that it intends to create a unified, lasting peace for Syria.
Support Justice to Bring an End to the Conflict
The international community has an obligation to help the opposition, but sending arms is not enough. At this stage of the conflict there is a great need to support fledgling civil structures in Syria. These can be bolstered by establishing a transitional justice system allowing innocent individuals to seek refuge from the current regime. Through conflict resolution, impartial tribunals, and techniques like lustration and truth commissions, the implementation of a ‘lawfare’ programme will lay the foundations for the re-establishment of the rule of law in Syria and develop an all-inclusive process that protects all Syrians.
David Falt has worked with numerous governments as a transitional justice activist and is part of the consortium of experts advocating for “lawfare” as a conflict resolution tool. The former Director of Government Relations for Europe at the Syrian Support Group, he currently serves as a volunteer adviser to a number of opposition NGOs and individuals focusing on justice and accountability in Syria. Twitter: @davidfalt