As Syria undergoes a precarious government transition under interim President Ahmed al-Sharaa following the ouster of Bashar al-Assad, now is a critical moment to hold members of the former regime accountable for widespread human rights violations. One effective approach would be to establish a Special Domestic Criminal Court to prosecute individuals responsible for crimes committed under Bashar al-Assad’s rule.

Establishing a Special Domestic Criminal Court would require a multifaceted approach, weaving together elements of both Syrian and international laws, while taking into account the political realities faced by the interim leadership. Given the significant role of Syrian jurists, the court’s integrity and credibility would stand to benefit from their engagement.

Step 1: Establish a Legal Framework

Draft Enabling Legislation

The first step would be to draft a statute defining the court’s jurisdiction, procedures, and specific crimes. The statute must reference Syrian laws including:

• Penal Code (Law No. 148 of 1949), especially articles related to crimes against the state, public order, and violations of human rights (e.g., Articles 60-63 regarding torture).
• Anti-Terrorism Law (Law No. 19 of 2012) which would be helpful for prosecuting violations linked to acts deemed terrorism under Syrian law.

The process would require assistance from legal experts and academics to draft the statute. Local lawyers, judges, and civil society organizations could then consult one other to ensure the statute’s applicability and acceptance.

Incorporate International Principles

Groups would work to ensure that the statute’s legal framework integrates principles from international instruments, such as:

• The Universal Declaration of Human Rights.
• The International Convention on the Elimination of All Forms of Racial Discrimination.
• The International Humanitarian Law to address Geneva Conventions violations specific to Syria.

Step 2: Define Jurisdiction

Subject Matter Jurisdiction

Drafters would define crimes in the statute, including:

• War Crimes as defined under Syrian law, and in line with international legal standards, emphasizing Article 1 of the Geneva Conventions.
• Crimes Against Humanity as defined in the Rome Statute. For example, Article 7 of the Rome Statute outlines acts like extermination, torture, and forced disappearance.
• Torture and Inhumane Treatment as the international convention directly corresponds to Syrian Penal Code articles referring to torture.

Personal Jurisdiction

The statute would Include clear definitions of who can be prosecuted, specifying government members, military leaders, and collaborators involved in systemic violations. It would also adopt the international principle of the command responsibility doctrine to hold leaders accountable.

Step 3: Court Structure

Court Composition 

The judiciary would include the appointment of Syrian judges with experience in both human rights and criminal law. To ensure impartiality and ensure representation, the judiciary would need to include judges from diverse backgrounds.

Accordingly, there would need to be an advisory committee made up of local legal experts to provide ongoing guidance and to ensure cultural relevance in judgments.

Prosecutor’s Office

The prosecutor’s office would establish functions similar to those in established international courts, such as investigative units for gathering evidence, and legal researchers to assist in preparing cases.

Step 4: Ensure Due Process and Fair Trial Guarantees

Legal Representation

Groups must establish ways for people to seek legal counsel, possibly creating and providing defendants with a list of qualified attorneys who specialize in human rights law. There must also be an internal court procedure in place to support defendants who cannot afford representation.

Trial Procedures

Courts must adopt a trial framework aimed at emphasizing oral proceedings and transparency, akin to practices used in established courts, such as the International Criminal Court. The court must also grant public access to trials, adding safeguards to protect sensitive information to keep witnesses and victims safe. 

Victims’ Rights

Courts should adopt mechanisms to encourage victim participation, allowing them to present their experiences and provide evidence.

Step 5: Political Considerations

Engage Stakeholders

Groups should consult with local and regional stakeholders, including religious leaders and community representatives, to foster understanding and support.

Navigating Sharia Law

While implementing the court, groups should take care to ensure that court articles and operations respect Islamic/sharia law principles. This could include:

• Exploring the compatibility between prosecution charges and sharia principles.
• Offering educational programs about the balance between human rights and religious values.

Step 6: Secure Funding and Resources

Budgeting

A detailed budget forecast should be created to include operational costs, judicial salaries, and educational outreach. This would entail approaching various funding entities including:

• International humanitarian organizations such as the United Nations Development Program.
• Non-governmental human rights organizations.

Physical Infrastructure

A neutral and secure site should be chosen for court proceedings to make it accessible to all stakeholders.

Step 7: Public Awareness and Outreach

Education Campaign

Community outreach specialists should draft informational materials in Arabic and distribute them through community hubs. They could also partner with media outlets to spread awareness about the court’s functions and the importance of justice.

Partnership with Civil Society

Civil society should work closely with local non-governmental organizations to promote transparency and gather community feedback.

Step 8: Monitor and Evaluate

Oversight Mechanisms

Jurists could set up an independent oversight body consisting of respected legal professionals and human rights advocates to review court procedures.

Reporting Mechanisms

The court could publish annual reports detailing activities, findings, and the impact of the court’s work, ensuring accessibility to the public.

This enhanced step-by-step guide provides more detail on the operationalization of a Special Domestic Criminal Court in Syria, emphasizing the need for a framework rooted in Syrian law while ensuring adherence to international human rights standards. The active involvement of Syrian jurists is crucial for the court’s credibility and efficacy in delivering justice.

David M. Crane is the Founding Chief Prosecutor for the UN Special Court for Sierra Leone. He is also the founder of the Global Accountability Network, co-author of the “Caesar Report,” and the author of  “Every Living Thing-Facing Down Terrorists, Warlords, and Thugs in West Africa-A Story of Justice.”