Prisoners release and accountability in peace agreements (1)

Preface: The Syrian conflict just entered its eight year, and no progress has been made to find a political solution to it. Two peace talks are ongoing, conducted by the United Nations (UN) and Russia respectively, with little to no success. The latest round of the UN-sponsored talks, held in Vienna in January 2018, revealed the unwillingness of the Syrian regime to make any concession to end the conflict,^[1] while the Sochi talks, sponsored by Syria’s ally Russia, do little to encourage President Assad to compromise.^[2] Eventually, these negotiations have no impact on civilians’ lives, who remain the first victims of the conflict.^[3]

            This study aims at shedding light on what a peace agreement could entail with regards to one particular aspect that has characterised the Syrian conflict from the start. Indeed, a long list of abuses have been reported since the beginning of the conflict, including the use of indiscriminate attacks, the use of chemical weapons, the denial of humanitarian access and forced displacements. This study will focus on the detention of political prisoners and civilians. Reports have documented the use by all parties to the conflict of detention as a way to silent opposition, instil fear among populations or punish dissidents. Abuses related to detention, including arbitrary arrests, torture, sexual and gender-based violence and killings have been documented, as they had been previously in similar conflicts that ended up finding a political issue. The issue is therefore twofold: first, how the accords plan for the release of prisoners, and second do they provide for accountability mechanisms to deal with abuses committed, including during detention? Although each conflict is unique, because of its root causes, the actors taking part to it, the level of compliance with international law or the degree of political willingness to end it, considering the foreign experiences can instruct us and help understanding the dynamics of peace negotiations.

            This study will therefore give an overview of the provisions addressing the issue of prisoners in different contexts, including Northern Ireland, Uganda, Mozambique, Colombia, South Africa, or Bosnia. First, it will address the essential issue of their release. Second, it will turn to studying accountability in peace agreements, building on the peace versus justice debate.

1. The documentation of abuses committed in detention in Syria

The issue of detainees in Syria is on an unprecedented level. It is interesting to see that it was actually the detention and torturing of civilians in Daraa that ignited the demonstrations in 2011. Since then, most parties to the conflict have committed abuses in the context of detention.

The Syrian regime has used mass detention since even before the beginning of the conflict.^[4] The war has only accelerated the pace at which the regime incarcerates individuals for no other motives than expressing their opinion, conducting a large operation of systematic detention of opponents, and committing numerous violations to international law, including the crimes against humanity of murder, rape, sexual violence and torture ever since the beginning of the conflict.^[5]

Armed groups, such as ISIS and Jabhat al Nusra, have also committed abuses amounting to war crimes and crimes humanity, including abductions, torture and summary killings of civilians and captured fighters.^[6] Opposition armed groups use kidnapping and detention as a bargaining chip.^[7] And Kurdish forces, including YPG and Asayesh forces, arbitrarily arrest and detain prisoners of conscience and political dissenters.^[8]

2. The way to peace

            Building peace is a critical exercise. Actors engage in fighting and suffer considerable loss for a higher purpose that can be territorial, ideological, financial. In order to find a political solution to the conflict, negotiators have the sensitive task to show them they have more to win ending the conflict than pursuing it.

2.1. What are the goals of peace agreements?

            Each peace process has its own purposes, and identifying them is an essential prerequisite. These can include the establishment of disarmament demobilisation and reintegration programmes, the establishment of a dialogue between warring parties or elections.^[9]

2.2. How do we get to peace agreements?

            Conflicts are all unique, but often share complexity as a common trait. It is therefore crucial the negotiators and peacemakers conduct a thorough analysis of the conflict prior to engaging with parties. This can entail an evaluation of the context, a reflection on core grievances and social-institutional resilience, an identification of the drivers of conflict and mitigating factors, and eventually a description of the opportunities for increasing or decreasing conflict.^[10]

            The process is then most often divided in several phases, including a pre-negotiation, negotiation, and implementation.

            The process towards the cessation of hostilities often starts with confidence building, that consists in addressing easier issues to create an environment propitious to further negotiations, before even considering the root causes of the conflict.^[11]

2.3. How to get to an agreement?

            Two ways to get to an agreement are typically implemented. Most commonly, mediators tend to favour a progressive approach, where the easiest issues are discussed and agreed on first, before getting to the next issues, and repetitively. Another approach, however, has also proven effective, and consists in delaying the final agreement until everything has been discussed and approved by the parties. The approach chosen by parties and mediators will, in turn, inform the whole process.

2.4. At what stage do prisoner releases intervene?

            Prisoners release is a common disposition in peace agreements. Out of 77 peace agreements concluded between 1980 and 2006, 26 included a clause related to prisoners release. It can intervene at different points of the negotiations and can be conceived as a prerequisite, as a confidence building measure, or as a final aim. Most of the time, prisoner releases intervene as preliminary to, or as an early phase on the peace process and often considered as an incentive to end violence.^[12]

            But prisoners release can also be pat of a more comprehensive strategy aiming at achieving a lasting reconciliation. In such instances, the agreement often includes amnesties in combination with prisoners release, as was the case in the 1992 General Peace Agreement concluded in Mozambique, and the 1994 Lusaka Accords between the government of Angola and UNITA.^[13] In theses instances, the peace agreements focusses on reconciliation and reintegration of former combatants.

            In Colombia, a conflict tore the country for more than fifty years, resulting in the death of more than 200,000 people, the forced displacements of 4,7 million people and around 27,000 people kidnapped.^[14] The issue of prisoners was actually at the forefront of the process, and the argued reason why Colombians, opposed to the amnesty granted to FARC prisoners, rejected the deal on the 2 October 2016 referendum.^[15] The deal was eventually signed later on by the Congress, and included a series of amnesty for FARCs imprisoned on political ground, implemented ultimately by a series of legislation. The implementation was not always smooth, and the government at times delayed the release of prisoners, who went on hunger strikes to demand the application of the peace deal.

            The release of prisoners was highly controversial in Northern Ireland as well. The 1998 Good Friday agreement, that put an end to the Troubles, a conflict that had taken place from 1963, provided that all political prisoners would be released within two years. The move consisted mostly in an incentive to reach a peace agreement. To this end, the provision related to the release of prisoners excluded groups opposed to the peace process or who kept engaging in armed operations, but remained flexible enough to include them would they decide to enter the peace process. The strategy paid off, as all groups except for one decided to take part in the negotiations.^[16]

            Why it might work in Syria? Different reports have documented the use of release of prisoners as part of transactions. Syrians for Truth and Justice revealed in 2017 that at least 37 transactions involving the release of civilians had taken place.^[17] This confirms that all the warring parties are in possession of detainees, and is an indicator that with the right incentive, warring parties manage to negotiate terms of agreements.

            Why it might not work? The context in Syria is fundamentally different from that of Northern Ireland’s Troubles. Indeed, while in Northern Ireland the state detained political prisoners  who had actively taken part in armed operations, the regime and armed groups in Syria use detention in a widespread way against civilians. The process in Northern Ireland relied on the release being part of a trade in exchange of the discontinuation of armed operations. For the analogy to work out, this would therefore require that armed groups in Syria have a strong enough interest in seeing civilians freed to put an end to their operations. Although armed groups have, in the past, participated in prisoners swaps to release civilians, the extent of the abuses committed by all parties to the conflict will certainly need more than the release of prisoners to put an end to the conflict.

2.5. The qualification of political prisoners in the case of detainees

            In the case of non-international armed conflicts, it is easy for the detaining power to manipulate the qualification of the detainees as being related or not to the conflict. For instance, during the Troubles, the British government conducted a conscious policy aimed at depoliticising the detainees and stripping the motives of their detention from the political character, using subtle and hidden means such as uniforms. The 1991 Northern Ireland Act established a legal and explicit recognition of the particular nature of political prisoners, classifying them under terrorism, defined as “the use of violence for political ends.”

            On the other hand, South Africa did not recognise the existence of political prisoners. In reality, however, segregation from common-law prisoners took place in similar conditions to that of Northern Ireland.

            This, in turn, impacts the peace process when it comes to deal with prisoners release. On the one hand, detaining powers can exclude political prisoners from the list of released prisoners by denying them the status.

            How could this apply to Syria? The Syrian regime has a long record in deceiving, hiding and lying about the abuses committed by its ranks. A peace agreement providing for the release of prisoners should pay particular attention to the definition of prisoners released as part of the peace process, in order to include all civilians arbitrarily detained by the regime, and leave no room to false claims that grounds justify the deprivation of liberty on the basis of common law with no connexion to the conflict. This could be implemented, firstly, by the provision of the release of all prisoners detained on the ground of domestic Syrian laws that are in breach with International Law, and, secondly, by the provision for a fair trial for all detainees requiring it, monitored by impartial observers. On the other hand, armed groups should be closely checked over as well. Contrarily to the regime, they do not possess stable infrastructure that could be easy to visit and watch, such as prisons.

3. Between ill treatment in detention and peace agreements: the peace versus justice debate   

            The numerous abuses committed against detainees by the warring parties mandates, when reflecting on the release of prisoners in peace agreements, to address the issue of accountability. The debate among practitioners of peace-making and international law consists often in opposing the pursuit of justice and that of peace, and presenting them as irreconcilable. The idea is especially reinforced by mediators of peace-making who intervene first in the peace and justice timeline and fear that the prospects of international justice might undermine their efforts to bring conflicts to an end. In the same vein, the pursuit of justice by the International Criminal Court (ICC) has often been criticised as impeding the quest for peace.^[18] Negotiators assert that their mission, already challenging as it is, cannot suffer an additional obstacle.

            These views are understandable, and cannot be ignored. But an honest assessment of the risk that justice poses for the pursuit of peace must go beyond the mere inconvenience that the spectre of prosecutions represents for the negotiators of peace deals, and comprehend the long-term effects of impunity on post-conflict societies. Through that lens, the cost of impunity is way higher than that of justice. Societies in which perpetrators are not prosecuted for the crimes they have committed and that lack a justice system to deal with the violations committed during the conflicts pay a higher price on the long-term. Additionally, the impact of prosecutions or of the absence of amnesty in peace negotiations seems to be overestimated, as in numerous instances this factor did not result in the end of the negotiations.^[19]

            On the contrary, the threat of prosecutions has sometimes proven an efficient incentive to reach a settlement. This was the case in Uganda, where LRA military leadership agreed to become an active part of the peace process when the ICC started issuing warrants.^[20] The peace versus justice dilemma later on took an interesting turn when the Acholi, a people divided by the conflict, on the one hand persecuted by the the Lord’s Resistance Army (LRA), and on the other whose children were forcibly recruited by the rebels and became perpetrators of these crimes, advocated for and managed to establish a traditional justice mechanism.^[21]

            Why this might work in Syria? Syria’s society is accustomed to traditional justice mechanisms. Before the conflict, an extensive web of traditional justice ruled matters such as family law and property law.^[22] This mindset could be propitious to the establishment of traditional justice mechanisms.

            Why this might not work? The context in Syria might appear to be more complex than it used to be in Uganda, where the warring parties were clearly identified. Over the past seven years, the actors to the conflict in Syria have mutated and multiplied. Their objectives, ideologies, and members are hard to track down, making it harder to organise. Additionally, the demographics have been deeply affected by the conflict, forcing communities to live together, while traditional justice mechanisms require a deep understanding of the parties. Finally, Syrian society is traditionally patriarchal, and a traditional mechanism might fail to deliver justice for certain crimes committed in detention, in particular sexual and gender-based violence, and, ultimately to lay the foundation of an equal society.

            In Colombia, arbitrary arrests and detention were also a massive phenomenon, perpetrated mostly by armed groups.^[23] The accord signed by the parties in November 2016 is remarkable in the way it deals with accountability and attempts to bridge the issues of peace and accountability at once. It establishes a complex accountability mechanism that includes a web of traditional and alternative sanctions, as well as judicial and non-judicial bodies. The “justice agreement” consists in a Truth, Coexistence and Non-Repetition Commission, a Special Unit for the Search for Persons and a Special Jurisdiction for Peace (SJP). The SJP includes Judicial Panels, that deliberate on which cases go to trial, and a Peace Tribunal that deals with “grave violations of human rights and humanitarian law” committed by FARC guerrillas. The agreement also establishes a scale of sanctions for perpetrators, based on their admission of the crimes they have committed and their commitment to cooperate with the SJP, providing sanctions from 8 years of restriction of liberty to 20 years of prison.^[24] The court will work in parallel with the ordinary criminal justice system, that remains competent to deal with crimes committed during and as part of the conflict, as well as with the International Criminal Court, that has opened a preliminary examination on the allegations of abuses committed as part of the conflict. At the opening of the SJP, on the 15 March 2018, 6.094 members of the guerrilla had agreed to appear before the court.^[25]

            Why this might work in Syria? The peace deal negotiated in Colombia puts an end to a deep rooted conflict that draws similarities with the conflict currently taking place in Syria. It originally stem from a deeply segregated economy favouring an elite, mostly of Spanish descent, at the expenses of the poorest classes. The Revolutionary Armed Forces of Colombia (Farc) took the arms at the end of the 1960s with the aim to establish a Marxist government. The conflict later on brought right-wing paramilitaries, and evolved in a multiple fronts war. This can be compared to a certain extent to the situation in Syria, where the conflict erupted in a highly divided society, where members of the Alawite minority were disproportionally privileged by the Government’s policies.^[26] The conflict started as pacific demonstrations aimed at claiming more freedom, and bogged down in a complex layers of confrontations, building on fluctuant alliances. These similarities might support the argument that such a tentative to include an accountability process in a peace deal might succeed in Syria.

            Why this might not work? First, despite the praise surrounding the deal and the hopes it raises, its implementation will be the only gauge for its success. Almost two years after its signatory, the accord still isn’t implemented to its fullest and hasn’t brought the peace many hoped for.^[27] Second, the peace deal was the result of a political will by both sides to the conflict to end it. The process started in 2010 and was sought by all parties. The context could not be more different in Syria, where, at the moment, the parties do not appear to consider negotiations.

            In Bosnia, the Dayton Agreement was actually signed after the International Criminal Tribunal for the former Yugoslavia was established. Observers mainly doubted the opportunity to establish a tribunal when the conflict was still ongoing, bringing the peace versus justice debate and asserting that pursuing justice was detrimental to the peace negotiations.^[28] Eventually, however, the indictment of key figures of the conflict, including Karadzic and Mladic, did not impede the process and the ultimate signatory of the Dayton peace agreement.^[29]

            Why this might work in Syria? The Bosnian and the Syrian conflicts share some similarities that make relevant a comparison between the two contexts. The Bosnian war was deeply rooted in ethnic and religious grounds. While the Syrian conflict stem from demands for more freedom, it later on took an ethnico-religious turn, fuelled by the strategy of the regime to divide the opposition. Additionally, some European jurisdictions already exercise their universal jurisdiction and prosecute individuals suspected of committing war crimes and crimes against humanity in Syria, as was the case when the ICTY started its work as the conflict was ongoing. The Dayton accord shows that these prosecutions do not necessarily impede a peace process.

The agreement is also a welcome reminder that even in cases where warring parties and leaders seem to have no incentive to put an end to the conflict, a well-manoeuvred peace process can deliver outcomes. At the time of the process, Izetbegovic was in a position of force and had little incentive to settle, but was forced to do so when Milosevic and Tudjman both agreed.^[30] The quality of the negotiators is, additionally, often praised and considered to have played a major role in the success of the process.^[31] Similarly, in Syria, currently, stakeholders, and the Syrian regime in particular, seem to have little to gain in settling. Syria’s regime is backed up by Russia and Iran and does not seem to doubt his military superiority and even his legitimacy to be at the head of the country, which might seem at odd with a peace process.

            Why this might not work? The current state of affairs in Syria leaves little room for hope for a political solution to the conflict. The Syrian regime, backed by Russia and Iran has taken back most of the territory and built its confidence along the way. Peace talks have been ongoing for several years: two peaces processes are currently ongoing, protracted by the UN and by Russia respectively, dividing the progress and the success of both initiatives, with, eventually, little to no result.

Conclusion

            The overview of foreign experiences in contexts as diverse as Angola, Mozambique, Northern Ireland, Colombia, South Africa and Bosnia demonstrates that there is no roadmap to peace and justice. In each of these situations, peace-makers have probably reflected on previous experiences, as we just did, and worked out their own peace process in accordance with their analysis of the conflict.

            We can, nonetheless, identify the main factors at play when it comes to the success of peace processes, that might be crucial to the negotiation of challenging dispositions such as prisoners release and accountability:

• A political will to negotiate from all the parties to the conflict;
• The existence of traditional justice mechanisms;
• The quality of mediators;

            Syria has a strong web of traditional justice that, even though would need to be restored following the demographic changes provoked by the conflict, can be used for the benefit of a peace process aware of accountability needs. The two sets of talks, sponsored respectively by the UN and Russia, gather experienced peace-makers. In particular, the UN peace envoy de Mistura has remarkable skills in peace negotiations and must find the tools to create the required incentive to bring the parties to the table, refrain from overstating the effect of accountability on the peace process and work for a long-lasting peace, that is only achievable with a strong accountability strategy.

This article is the first part of a study written by Syrians for Truth and Justice as part of an initiative by Save the Rest campaign to raise awareness and build a strategy on the issue of detainees and missing people in Syria.