Syria: Peacemaking or prosecutions?

On October 30, representatives of Syria’s government, opposition, and civil society came together in Geneva at the inaugural meeting in Geneva of the Syrian Constitution Committee (SCC), the most promising effort yet to negotiate an end to the country’s hyper-destructive civil war.

But just the day before the SCC opened, a court in Germany charged two former Syrian intelligence officers, residents of Germany, with crimes against humanity for tortures they allegedly committed in Syria some five years before.

Those prosecutions, and the possibility of other similar ones after it, raise the prospect that demands from non-Syrians for one-sided prosecutions for abuses committed during the country’s lengthy civil war could significantly block or delay the chances for ending the war.

It is true that, at various stages of Syria’s lengthy, grinding conflict, many on the government side have committed heinous acts. As, too, have many on the anti-government side, including the Al-Qaeda-linked groups of the Hai’at Tahrir al-Sham (HTS), ISIS, the Free Syrian Army, and others.

Civil wars are like that. I know. I lived and worked as a journalist in Lebanon for the first five years of the civil war there. In any prolonged (and often fratricidal) conflict of that nature, there may or may not be a strong imbalance of “propensity to be atrocious” between one party and another — but no organization that fights in such a conflict has clean hands.

So any project to “seek accountability” for atrocities committed during a civil war is necessarily complex. Moreover, when such projects intersect with efforts to end the war in question — and to turn to building a more inclusive and accountable political order for the future — the results can be even more complex.

First, the complexity of the accountability process itself. The case against the two Syrian officers in Germany has reportedly been built in part on evidence contained in the “Caesar” photos, a collection of thousands of photos from military mortuaries smuggled out of Syria by a defector in 2015, and on other Syrian government documents smuggled out by anti-government networks.

That information-gathering operation has been centered at the Commission for International Justice and Accountability (CIJA), an organization funded by Western governments that have been strong backers of the regime-change project in Syria. There is no record that CIJA has also been collecting evidence of atrocities committed by anti-government forces in Syria, though extremely gruesome videos and other records of these atrocities are widely available on many different media. There is no record, either, that CIJA has been collecting documentation of the large role that despotic Gulf Arab governments, Turkey, and Western governments have played by sending arms, financing and ideologically motivated foreign fighters to aid the lengthy, violent anti-government campaign inside Syria.

There is an evident problem of basic fairness and objectivity in any “Syrian war-crimes prosecutions” project that is dominated by supporters of the regime-change side.

Then, there is the matter of how punitive “accountability” efforts interact with peacemaking efforts. Two crucial examples from the 20th century’s “World Wars” can illustrate this. (Both of these are, indeed, linked to Germany’s own history.)

The first focuses on a series of events in Western Europe in September 1994. Three months after the D-Day landings, Allied forces were closing in on the German homeland from all directions in what was rapidly becoming a “race for Berlin.” In Washington, there was a heated discussion in the Cabinet over how to treat Germany’s leaders, combatants, and economy once the increasingly likely victory was won. Treasury Secretary Henry Morgenthau, Jr., wanted to shoot all Nazis on sight and destroy Germany’s whole industrial base. War Secretary Henry Stimson argued for a restrained, more forward-looking policy.

Morgenthau seemed to be winning the internal argument, and that news got leaked to the Sunday papers. Immediately, the resistance of the German units fighting on the Western Front stiffened. They pushed back and, dealing the Allies a stinging defeat at Arnhem, succeeded in postponing the Allies’ victory by weeks, if not months. (Morgenthau then lost his argument in Washington. See below.)

Many of the lessons from that episode in 1944 remain valid today, though with some key differences. Syria is not Nazi Germany. It has not been the expanding, aggressive party in this war, but the party whose terrain has been invaded by others. The Syrian government’s abuses have come nowhere close to the systematic, explicit genocides carried out by the Nazis. And Syria is today the party with the upper hand, militarily, in the war being fought on its national territory.

But at a more general level it remains true that if during a hard-fought conflict you keep threatening to inflict harsh punishments on an opponent, then you are likely to keep tensions high and prolong both the conflict itself and the great suffering it imposes on the residents of the war-zone, civilians and fighters alike. (This is the main reason that, as U.S. negotiations with the Taliban in Afghanistan have proceeded, Washington’s previous attempts to punish the Taliban have nearly all been quietly — in my view, rightly — shelved.)

It is impossible to have meaningful, successful negotiations over conflict termination with an opposing side on whom you are simultaneously trying to impose harsh punishment. That was true in the negotiations that ended Apartheid in South Africa 25 years ago. And it is still true, today.

So, back to Morgenthau and Stimson in 1944–45… Morgenthau, as noted, lost the argument over whether to visit a harshly punitive peace on a conquered Germany and Stimson’s much more restrained and forward-looking vision of helping to rebuild and reform Germany was the one that won the day.

Thank goodness. A harshly punitive “peace” had, after all, been the nightmare the victorious Allies imposed on Germany in 1919. And the misery that resulted from that “peace” did a lot to incubate the rise of Nazism… as Stimson and his colleagues in the War Department well knew.

In 1945 and the following years, they were running the massive U.S.-led occupation of Western Germany. They worked speedily to rebuild the economy and society in the zones of Germany that they controlled. They implemented deepseated policitical reform. And to complement those moves they held some extremely limited and restrained war-crimes trials at Nuremberg.

In the famous first trial at Nuremberg, just 24 top Nazis were indicted. Two had their charges withdrawn, three were acquitted, seven received prison terms, and 12 were sentenced to death. The sentencing and the executions were all completed in less than eleven months. Meantime, the rebuilding of West Germany continued apace, fueled by the large-scale investment Washington made in rebuilding Europe, under the Marshall Plan. And the vast majority of rank-and-file Nazis were reintegrated into the German workforce.

(Among most human-rights lawyers, the Nuremberg trials are remembered for the cutting-edge international jurisprudence they pioneered. But for historians of the policies the U.S. occupiers pursued in that era like Bradley F. Smith, what stood out most was how “restrained” and “moderate” the war-crimes trial effort was. Reflecting on the Nuremberg trials in 1977, Smith concluded that the process there “graphically demonstrated that such war crimes tribunals have little of value to offer in dealing with transitions from war to peace.”)

Then, there is the variety of roles that relative “outsiders” can play. At the time of the Stimson-Morgenthau disagreement in 1944, Morgenthau’s calls for retribution and punishment had been loudly echoed — or amplified — by the leaders of Britain, Soviet Russia, and France, all of whose peoples had suffered far more greatly from the war than had Americans. Winston Churchill argued that all Nazis should be summarily shot. Stalin wanted to see 50,000 top Nazis executed. It took a relative outsider not still smarting from the wounds of war to push those allies to lay aside their thirst for vengeance.

So what lessons can Syrians and others who care about their nation’s wellbeing take from such historical examples? A first lesson is that reaching a robust political agreement that can end or radically de-escalate an ongoing conflict is in itself an immensely valuable goal, one whose contribution to the general human good far outstrips any good that a distant, polarizing attempt to prove a hotly contended moral point can achieve. The longer a war continues, the more destruction and suffering there will be — and also, within the festering petri-dish of war, the great the number of atrocities that will continue to be committed.

Of course, for any peace agreement to be sustainable, there must be intentional efforts at inclusion and political reform, otherwise the peace will be brittle and likely to fail. But attaining inclusion and reform is very, very hard in an atmosphere of mutual finger-pointing and blame.

In Syria today, as in the Europe of 1945, the role of outside powers is also significant. In today’s Syria it is undoubtedly significant that — though all participants in the SCC conference stressed that this peacemaking effort would be “Syrian-led” and “Syrian-directed” — in fact, the gathering had been convened as a result of the dedicated diplomacy of four key outside parties: Russia, Turkey, Iran, and the United Nations. Given that Russia and Iran are key backers for the Damascus government and that Turkey has acted as the indispensable supporter and backstop for all the regime-change parties, these governments (and the U.N.) all wield considerable influence on the SCC participants.

We should therefore hope these governments, and all governments and peoples around the world who want Syria’s terrible internal conflict to be brought to an end, will use their influence to focus on the forward-looking goals of achieving peace and rebuilding in Syria, rather than on demands for endless retribution. Syria’s people have suffered enough from this war.