Legal Incubation: Establishing the Rule of Law in Rebel-Held Syria

Nessma Bashi
Vol. 38 Associate Editor

As calls for democracy-building, freedom of expression, and the right to individual sovereignty were chanted by protesters throughout the Arab World in March of 2011, many Syrians were encouraged by the promise of popular power and headed to the streets to make their voices heard. What started as peaceful protests quickly culminated into a bloody civil war with no end in sight. Nearly six years later, a United Nations commission investigating human rights abuses in Syria confirmed at least nine intentional mass killings by the Syrian Regime during the period of 2012 to mid July 2013.[1] The Assad regime has also been blamed for using chemical weapons (chlorine gas) against civilians and conducting torture and extrajudicial killings. The report details “indiscriminate and disproportionate aerial bombardment and shelling” which “led to mass civilian casualties and spread terror.”[2] The gruesome nature of the conflict in Syria now calls into question the effectiveness of legal conflict resolution, particularly given the veto power of the Permanent Five and the Security Council’s subsequent inability to intervene.[3] Adding another dimension to the conflict is Russia’s direct military involvement. As Russian airstrikes rain down, civilian casualties rise on a daily basis. International Humanitarian Law (IHL) presides over armed conflict, like that in Syria.[4] Based on the principle of humanity, IHL provides that there should always be some principle of the laws of humanity that dictates public consciousness, no matter the exact words of a state’s law.[5] It signifies the shift from a state-­centered approach of international relations to a human­-centered approach. Essentially, whatever the law has to do with states, it still has to do with humanity. It specifically pertains to provoked persons (i.e. combatants and civilians).[6] Enforcement is accomplished by the criminal laws of the state in which the act was carried out, the criminal’s country of origin, or an international criminal tribunal.[7] The most concrete examples of IHL’s implementation are the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). The ICTY has indicted 161 individuals accused of crimes committed against thousands of victims during the conflicts in Croatia, Bosnia and Herzegovina, Kosovo, and the Former Yugoslav Republic of Macedonia.[8] Since trials began in 1997, the International Criminal Tribunal for Rwanda (ICTR) has conducted cases involving 50 accused, involving a prime minister and several ministers, prefects, bourgmestres and other leaders, who would otherwise not have been brought to justice. Judgments have been rendered in respect of 25 accused, with three acquittals.[9] Note that the ICTY and ICTR both pertain to post-conflict resolution. So, how can the rule of law be upheld in Syria—a country devoid of IHL? It is first important to recognize that the implementation of legal initiatives cannot occur in Regime-controlled zones. However, rebel-held areas have the potential to install effective legal procedures in the short-term despite the fact that insufficient legal expertise has left this segment of the population particularly vulnerable. Legal centers focused on documentation can be established to provide citizens with basic legal services, including: birth and marriage records, redress of grievances, and more. Also, citizens in rebel-held areas are exposed to other risks of exploitation and rights violations because there is a lack of trained officials who can train individuals regarding their local legal rights.[10] Therefore, an emphasis must be placed on local legal awareness so laws can be used by Syrians to protect themselves against legal issues. Doing so may lead to decreasing numbers of crimes, violations of law and regulations, thereby enforcing the rule of law. Such legal awareness should be accomplished by engaging Syrian lawyers. They will be encouraged to find their place in a new environment by utilizing their trade knowledge while simultaneously providing a direly needed service. There is also an added component of trust: it may be easier for a Syrian to accept information dictated by a respected Syrian counterpart, rather than a non-Syrian. This legal knowledge is crucial, not only to meet immediate security needs, but for the rebuilding of Syria in a post-­conflict world. Long-term implementation of the rule of law in Syria must be focused on transitional government. Investigation of war crimes and prosecution of perpetrators at the International Criminal Court will be crucial to the promotion of political accountability. Failing to establish commissions of inquiry into war crimes, prosecute individuals, and install peace and reconciliation efforts will likely contribute to a society devoid of healing opportunities—the result of which could be unstable peace. Ultimately, it is possible to incubate legal zones within Syria in order to foster the rule of law and democracy. Doing so will be essential to the country’s future.

[1] John Heilprin, Syria Massacres: UN Probe Finds 8 Were Perpetrated By Syria Regime, 1 By Rebels, Huffington Post (09/11/13 06:21 AM), [2] Human Rights Council, Report of the independent international commission of inquiry on the Syrian Arab Republic, U.N. Dᴏᴄ. A/HRC/27/60 (August 13, 2014). [3] Vᴏᴛɪɴɢ Sʏsᴛᴇᴍ ᴀɴᴅ Rᴇᴄᴏʀᴅs,, (last visited Nov. 14, 2016) (noting that China, Russia, France, United States, United Kingdom are granted the special status of Permanent Member States at the Security Council, along with a special voting power known as the “right to veto”). [4] What Is International Humanitarian Law?, (last visited Nov. 14, 2016). [5] Id. [6] Id. [7] Id. [8] Aᴄʜɪᴇᴠᴇᴍᴇɴᴛs, (last visited Nov. 4, 2016).   [9] Erik Møse, Main Achievements of the ICTR, 3 J. Iɴᴛ’ʟ Cʀɪᴍ. Jᴜsᴛ. 920, 920-943 (2005) (discussing the main achievements of the International Criminal Tribunal for Rwanda).   [10] Lᴀᴡʏᴇʀs Fᴏʀ Lᴀᴡʏᴇʀs Hᴇʟᴘs Lᴀᴡʏᴇʀs ɪɴ Dᴀɴɢᴇʀ Aʀᴏᴜɴᴅ ᴛʜᴇ Wᴏʀʟᴅ, (last visited Nov. 14, 2016).