Between Victims’ Right to Justice and the Risk of Creating a New Exceptional Authority
Syria is preparing to enact comprehensive transitional justice legislation, more than a year after the National Commission for Transitional Justice was established by Decree No. 20 of 2025. The Commission has stated that an initial draft has been completed and is awaiting the remaining legislative procedures, while also announcing preparations to address major massacres and patterns of grave violations.
The importance of this law, however, cannot be measured by the speed of its adoption, the number of bodies it creates, or the breadth of the powers it grants. The decisive test is whether it establishes a comprehensive, independent and reviewable system of justice—or merely gives legal form to exceptional measures taken in the name of victims.
Transitional justice is not simply the trial of a number of former regime figures. Nor is it merely a commission that collects testimony, a compensation fund, or a reconciliation programme. It is an interconnected framework encompassing truth-seeking, criminal accountability, reparation, institutional reform, preservation of memory, and guarantees that violations will not recur.
No single component can substitute for the others. Trials alone cannot reveal the full truth. Compensation without accountability can become an attempt to purchase victims’ silence. Reconciliation without acknowledgement and responsibility may become a softer name for impunity. Institutional reform without legal standards may turn into collective exclusion or political retaliation.
From a Brief Decree to a Comprehensive Law
Decree No. 20 of 2025 established the National Commission for Transitional Justice as an independent body with legal personality and financial and administrative autonomy, operating throughout Syrian territory. Its declared objectives include uncovering the truth about grave violations caused by the former regime, coordinating accountability with the competent authorities, compensating victims, preventing recurrence, and promoting national reconciliation. The decree was published by the Syrian Arab News Agency.
The decree represents an important institutional beginning, but it is not sufficient to govern a complete transitional justice system. It does not define in adequate detail investigative procedures, the Commission’s relationship with prosecutors and courts, rules for appointing and removing members, avenues for challenging its decisions, standards for protecting witnesses and victims, management of evidence and archives, or the criteria governing compensation and restitution.
The original decree’s limitation of the Commission’s mandate to violations caused by the former regime also raises a legal and political question that the forthcoming law should not avoid.
There can be no serious dispute that the Assad regime’s institutions bear the principal responsibility for the largest, most systematic and widespread share of international crimes committed in Syria. Acknowledging crimes committed by other actors does not create an artificial equivalence in the nature or scale of responsibility, and the phrase “all parties” must never be used to dilute the former regime’s central responsibility.
Yet unequal responsibility does not justify unequal rights for victims. A victim does not lose the right to truth and remedy because the perpetrator belonged to a different armed or political actor. The law should therefore move from a mandate defined by the identity of the perpetrator to one based on the nature of the violation and individual responsibility for it. Syrian organisations have likewise called for a broader mandate while rejecting any historical or legal false equivalence. See the joint civil-society statement on Decree No. 20.
First: A Law Enacted by a Legislative Authority, Not an Expanded Internal Regulation
The rules governing transitional justice must be contained in legislation that is public, clear and subject to constitutional and judicial scrutiny. Fundamental rights and coercive powers cannot be created through internal instructions or administrative regulations issued by the same body that will exercise them.
At a minimum, the law should regulate:
- the legal nature, mandate and duration of the Commission;
- the qualifications, selection and removal of its members;
- powers to request information and access public archives;
- the relationship with the Public Prosecution Service and the judiciary;
- the rights of persons under examination or investigation;
- protection of victims, witnesses and whistleblowers;
- restitution, compensation and other forms of reparation;
- appeal and review procedures;
- financial, parliamentary and institutional oversight; and
- the fate of files, evidence and databases after the Commission’s mandate ends.
Second: A Comprehensive Mandate That Neither Equalises Responsibility nor Discriminates Among Victims
The law should define grave violations according to their legal character, not the political identity of the perpetrator or victim. Its material jurisdiction should cover, where the evidence and applicable law permit:
- war crimes, crimes against humanity and genocide;
- torture and enforced disappearance;
- extrajudicial and summary killings;
- sexual and gender-based crimes;
- forced displacement, siege and starvation;
- arbitrary detention and sham proceedings;
- systematic seizure of property;
- major economic crimes directly linked to violations;
- recruitment of children and attacks on humanitarian and medical personnel; and
- destruction, concealment or manipulation of evidence and mass graves.
Comprehensiveness is a rule of justice, not a device for rewriting history. The law should preserve distinctions between planners, commanders, direct perpetrators, accomplices, beneficiaries and persons with merely nominal affiliation. Responsibility is individual and must be proven; it cannot be inherited from a community, region, sect, institution or political label.
Third: Defining Crimes in Accordance with the Principle of Legality
The gravity of the past does not suspend the principle that there can be no crime or punishment without law. Criminal charges should be based on offences that were criminal under applicable national or international law at the time of conduct. The law may organise jurisdiction, procedures and institutions, but it must not manufacture retroactive criminal liability in violation of legality.
Where Syrian legislation is incomplete, courts should apply international criminal-law definitions only through a clear legal basis and with full respect for non-retroactivity, foreseeability, individual criminal responsibility and the prohibition of analogy against the accused. Political language, moral condemnation and human-rights reporting cannot substitute for the precise elements required for a criminal conviction.
Fourth: Independence from the Executive
Calling a commission “independent” does not make it so. Independence requires rules governing appointment, tenure, finance, conflicts of interest and removal. The law should provide for:
- public criteria of competence, experience and integrity;
- an open nomination process involving more than one institution;
- independent vetting of professional records and conflicts of interest;
- legislative or independent participation in appointments;
- meaningful representation of women, victims and diverse legal and social expertise;
- fixed terms that cannot be ended for political convenience;
- defined procedures for investigating and removing members;
- an independently audited budget;
- a prohibition on instructions from executive or security bodies; and
- public declarations of interests.
No body should be allowed to collect evidence, classify victims, refer suspects, control archives and distribute reparations while remaining effectively answerable only to the executive branch.
Fifth: Separating Truth-Seeking from Criminal Investigation
Truth commissions and criminal investigative bodies serve related but distinct purposes. A victim may be willing to speak in a confidential truth-seeking setting but not to become a witness in criminal proceedings. The law must therefore explain:
- when testimony given to the Commission may become judicial evidence;
- the conditions for sharing information with prosecutors;
- how confidential statements will be protected;
- the witness’s right to know how information may be used;
- protection against compelled self-incrimination;
- chain-of-custody requirements;
- rules for digital evidence, photographs and video;
- the evidentiary treatment of material collected by civil-society organisations; and
- cooperation with international mechanisms and foreign courts.
Information collected for truth, psychosocial support or advocacy cannot automatically be treated as a criminal deposition. Confusing these functions can endanger victims, weaken evidence and undermine both truth and justice.
Sixth: Ordinary Courts and Fair Trials
Transitional justice cannot be built through exceptional courts that reproduce the methods of the system it seeks to overcome. Criminal cases should be heard by independent, impartial and legally established courts. At a minimum, proceedings must guarantee:
- the presumption of innocence;
- prompt and detailed notice of charges and evidence;
- access to counsel from the beginning of questioning;
- adequate time and facilities to prepare a defence;
- exclusion of statements obtained through torture or coercion;
- public hearings, subject only to necessary measures protecting victims and witnesses;
- the right to examine prosecution witnesses and present defence evidence;
- trial within a reasonable time;
- a reasoned judgment; and
- review by a higher court.
Fair-trial guarantees are not a concession to the innocent. They are the only lawful means of establishing the guilt of those responsible and producing judgments capable of surviving political change and international scrutiny.
Seventh: Victims as Partners, Not an Audience
A victim-centred process requires more than inviting selected survivors to ceremonial consultations. Victims should have legally protected rights to:
- register without political, regional, ethnic or sectarian discrimination;
- receive information about the progress of their files;
- submit evidence and requests;
- be represented by lawyers or common representatives;
- participate in judicial proceedings where the law permits;
- challenge decisions affecting their rights;
- privacy and protection of identity;
- legal, psychological and social support;
- protection from retaliation, threats and stigma; and
- special arrangements for children, persons with disabilities and survivors of sexual violence.
International experience confirms that victim participation must be substantive rather than decorative. OHCHR guidance on contemporary perspectives in transitional justice emphasises the central place of affected communities in legitimate processes.
Eighth: A Victims’ Registry Must Not Become a Tool for Granting or Withholding Legitimacy
Registration should facilitate access to information, participation and reparation; it should not become a political certificate determining whose suffering is recognised. The law must provide accessible procedures, reasonable evidentiary requirements and an independent appeal against rejection.
Victims who lack documents, live outside Syria, fear authorities, belong to marginalised communities, or suffered at the hands of actors outside the law’s original political focus must not be excluded. Registration should also distinguish between recognition as a victim and proof sufficient for criminal conviction; the two serve different legal purposes.
Ninth: Missing Persons and Mass Graves
The law should establish or connect to a unified national register of missing persons and regulate the protection, examination and documentation of mass graves. It should require:
- immediate protection of suspected grave sites;
- a prohibition on unqualified or arbitrary exhumations;
- forensic standards and documented chain of custody;
- informed consent for genetic sampling;
- protection of genetic and family data;
- family participation in identification, return and burial decisions;
- legal certificates enabling families to address inheritance, marriage and property matters without being forced prematurely to declare a missing relative dead; and
- continuation of criminal investigation alongside the humanitarian search.
Families have a right to know, but the search for answers must not destroy evidence or reduce the missing person to a technical identification number.
Tenth: Reparation Is Broader Than Financial Compensation
A comprehensive programme should combine individual and collective measures, including:
- restitution of property and rights wherever possible;
- compensation for material and moral harm;
- medical and psychological care;
- professional and social rehabilitation;
- restoration of civil documents and records;
- legal rehabilitation and annulment of manifestly unjust judgments;
- official acknowledgement and apology;
- memorialisation and protection of crime sites;
- dignified return of remains;
- collective services for severely affected communities; and
- guarantees of non-recurrence.
Reparation must not be conditioned on waiving criminal or civil claims, accepting a political settlement, or forgiving perpetrators.
Eleventh: No Amnesty for International Crimes and No Forced Reconciliation
The law must distinguish between legitimate measures encouraging truth and cooperation and measures that extinguish responsibility for the gravest crimes. War crimes, crimes against humanity, genocide, torture and enforced disappearance cannot be neutralised through blanket amnesty or administrative settlement.
Reconciliation is an outcome that may emerge from truth, responsibility, remedy and institutional change. It cannot be imposed as a legal duty on victims. No official institution may demand forgiveness, equate silence with consent, or present the absence of complaint as evidence of reconciliation.
Twelfth: Institutional Reform Without Collective Punishment
Security, military, police, judicial and prison institutions require rigorous reform. Yet vetting must be based on individual conduct, command responsibility, integrity and professional competence—not collective affiliation. Every affected person should receive notice, access to the material relied upon, an opportunity to respond, and an independent appeal.
Reform should also address laws restricting freedoms, internal oversight systems, detention practices, judicial appointments and public access to information. Removing individuals without changing the rules and incentives of abusive institutions will not prevent recurrence.
Thirteenth: Transparency While Protecting Privacy
The Commission should publish its mandate, procedures, budget, procurement, general decisions, statistics and periodic reports. It should explain why files are prioritised and how recommendations are followed. At the same time, transparency must not expose victims, witnesses, children, survivors of sexual violence or persons not charged with crimes.
The law should establish strict data-governance rules, cybersecurity duties, access logs, breach reporting, retention periods and procedures for transferring or closing archives. Public oversight does not require public disclosure of every name or statement.
Fourteenth: International Cooperation Without Abandoning Judicial Sovereignty
Syria will need cooperation with the United Nations, international investigative mechanisms, foreign prosecutors, forensic institutions and states holding evidence or suspects. Such cooperation should rest on published agreements, judicial supervision, data-protection safeguards and respect for victims’ choices.
International assistance should strengthen national capacity, not create an unaccountable parallel justice system. Conversely, appeals to sovereignty must not be used to obstruct credible evidence-sharing or shield suspects from lawful proceedings abroad. The international mechanism has highlighted both progress and continuing opportunities for cooperation with Syria. See the United Nations report on cooperation and opportunities for justice.
Fifteenth: Deadlines and Independent Review
The law should define the Commission’s term, reporting calendar and process for renewal or closure. Temporary institutions should not become permanent centres of power. An independent body should periodically review effectiveness, rights compliance, expenditure, victim participation and implementation of recommendations.
At the end of the mandate, files and evidence must be transferred under law to designated archives, courts or public institutions, with continuing protection and access rules. Closure cannot mean disappearance of responsibility.
What Must the Law Never Permit?
- secret detention or investigative facilities outside judicial control;
- publishing suspects’ names as convicted persons before judgment;
- use of confessions extracted by coercion;
- immunity for international crimes;
- forced reconciliation or conditioning compensation on waiver of rights;
- collective purges based on affiliation;
- exclusive executive control over appointments, removal and funding;
- placing archives, budgets or conclusions beyond public oversight; or
- using transitional justice to punish political opposition or silence present-day criticism.
Legal View
The forthcoming law is a historic opportunity. It could also become one of the most dangerous laws of the transition if it grants broad powers without safeguards and review.
The moral authority of victims’ claims does not give any institution immunity from criticism. A body able to collect evidence, classify people, determine victim status, refer suspects, administer reparations and control archives can become an exceptional centre of power unless its functions are divided and subjected to judicial, legislative and social oversight.
At the same time, fair-trial rights and calls for reconciliation must never be used to paralyse accountability. The moral test of transitional justice is whether it protects the victim without political influence. Its legal test is whether it respects the rights of an accused person whom society may despise. Its institutional test is whether it can investigate a violation committed by someone close to current power with the same seriousness applied to crimes committed by that power’s opponents.
If the law prosecutes only the enemies of those in office, it will be a law of victory rather than justice. If it erases the systematic character of the former regime’s crimes through false equivalence, it will falsify history in the name of inclusiveness. If it punishes without evidence and fair trial, it will reproduce the logic of the security state. If it offers compensation and reconciliation without truth and accountability, it will organise impunity rather than end it.
Success will not be measured by the number of arrests, the amount of money allocated, or the political applause surrounding enactment. It will be measured by the production of an authoritative truth, fair and durable judgments, tangible remedy for victims, and institutions structurally unable to repeat the abuses of the past.
Legal note: This article is based on information and texts publicly available as of 4 August 2026. The full draft of the forthcoming transitional justice law had not been published for public review at the time of writing. The article therefore identifies safeguards that the law should contain; it does not claim to assess an unpublished draft.
