SIFR recommends the adoption of an inclusive and impartial transitional justice framework that ensures the recognition of all victims without discrimination, strengthens judicial independence, clearly delineates the powers of the institutions established under the law, guarantees the meaningful participation of victims and civil society, and aligns with international standards in a manner that advances effective accountability, reparations, institutional reform, and guarantees of non-recurrence.
1. Introduction
Draft transitional justice laws are crucial to post-conflict political processes. Beyond addressing past violations and preventing their recurrence, these laws also establish the legal framework governing future state-society relations. Hence, Syria’s Draft Transitional Justice Law is expected to provide a comprehensive framework regulating pathways for genuine accountability, reparations, institutional reform, and national reconciliation.
While the Draft Transitional Justice Law includes a number of positive elements—such as combining judicial and non-judicial mechanisms, establishing specialized institutions, and affirming the principles of accountability and reparations—it also raises a series of legal and structural concerns that may affect its coherence, impartiality, and practical implementation.
These concerns acquire particular significance in light of ongoing judicial developments in Syria. The initiation of proceedings concerning grave violations—such as the case of Atef Najeeb before the Fourth Criminal Court in Damascus—prior to the adoption of a transitional justice law gives rise to several challenges, particularly regarding the consistency of legal characterization, the uniformity of accountability processes, and the relationship between ongoing prosecutions and the anticipated legislative framework. Although the court relied on the Geneva Conventions, their Additional Protocols, customary international law, and Syrian law in its legal characterization of the alleged crimes, reflecting an effort to incorporate international standards, this approach is unfolding in the absence of a comprehensive domestic legislative framework governing and delimiting the interaction between domestic and international legal sources.
This also brings into focus questions concerning the principle of non-retroactivity in criminal law, particularly if a subsequent law introduces broader definitions or expanded modes of liability. Although exceptions to this principle have been recognized in relation to international crimes—as affirmed in Kononov v. Latvia before the European Court of Human Rights, the jurisprudence of the International Criminal Tribunal for the former Yugoslavia in Prosecutor v. Tadić, and the Nuremberg Trials—their application remains contingent upon a clear legal basis, the foreseeability of criminal liability, and the protection of fair trial guarantees.
Should the Transitional Justice Law be enacted after judicial proceedings have already commenced, additional challenges may arise concerning the recharacterization of conduct, conflicting judgments, or divergent legal standards. This underscores the need for clear transitional provisions regulating the relationship between ongoing proceedings and the forthcoming legal framework in order to ensure legal consistency and safeguard the principle of legality.
Given the importance of transitional justice legislation at this stage of Syria’s history, the Syrian Initiative for Fundamental Rights seeks to provide a critical assessment of the Draft Law. To this end, the following paper examines the Draft Law’s legal and institutional architecture, identifies the principal shortcomings that may hinder the achievement of transitional justice objectives, and proposes practical recommendations to enhance its consistency with constitutional and international standards. In doing so, it seeks to support a more inclusive and effective framework for delivering justice and preventing future violations.