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The key to achieving a Syrian accord

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The Syrian peace talks that are scheduled to resume in Geneva this week will take place under a framework set out in Vienna in October. These principles, agreed upon by the most important foreign players in Syria’s war, include a commitment to secular governance, the eventual defeat of Islamic State and other terrorist groups, the maintenance of Syria’s prewar borders, the preservation of its state institutions, and the protection of minority groups.

What they do not include is an effort to address the largest obstacle to lasting peace: the ongoing attacks against civilians and other atrocities that are intensifying divisions among the Syrian factions who will eventually have to govern together. If the deliberate carnage does not stop soon, diplomacy alone will be unlikely to suffice to end the conflict.

The war has continued for so long, in part, because both the Syrian government and the armed groups it is fighting believed that they would ultimately prevail. Russia’s entry into the conflict has helped change that calculus. But, while Russian airpower has bolstered the government enough to keep it from collapsing, it has not been enough to make significant progress against the opposition.

Meanwhile, the attacks in Europe by Islamic State, combined with the mass exodus of Syrian refugees, has spurred a new push for a political compromise. The European Union, the United States, and other interested countries hope that Syria’s warring parties will stop fighting each other, and turn their weapons instead on Islamic State and other extremist groups, such as Jabhat al-Nusra.

One of the toughest nuts to crack in the peace negotiations is the fate of Syrian President Bashar Assad and his henchmen. The Assad regime is responsible for the highest number of civilian casualties by far, having carried out indiscriminate attacks in populated opposition-held areas, besieged entire populations, blocked the delivery of humanitarian aid, and tortured and executed prisoners.

And yet, while Assad’s opponents insist that he relinquish power, that clearly will not be a precondition for the talks. As a practical matter, Assad leads one of the conflict’s most powerful factions, one that must be represented at the negotiating table if peace is to be achieved.

Furthermore, the abrupt removal of Assad could deal a fatal blow to the Syrian state — an outcome that is in no one’s interest (with the exception of Islamic State and other extremists). The dissolution of Syria’s security forces and judicial system could be especially dangerous for Syria’s minorities. That is why a managed transition must be the goal of all participants in the talks.

One logical compromise would be for Assad to retain power for a short period. Even Russia and Iran, his most vociferous supporters, have hinted that they could accept his departure if he steps down through negotiations, rather than being ousted by a popular revolt (and as long as the successor regime is friendly to them).

If Assad and his murderous cronies agree to relinquish power, they will undoubtedly seek amnesty for their crimes. That must be firmly rejected. Since the early 1990s, the international community has rightly withheld its imprimatur from amnesties for mass atrocities. Indeed, international law requires that such proposals be rejected.

In any case, an amnesty in Syria would not protect Assad from prosecution. If a future Syrian government were to join the International Criminal Court and consent to retroactive jurisdiction, the court would be free to prosecute any mass atrocities it saw fit to investigate. Similarly, foreign courts exercising universal jurisdiction over alleged Syrian war criminals found on their territory would be free to ignore an amnesty. And precedents from Argentina, Chile and Peru have shown how even in countries where the atrocities occurred, amnesties granted under pressure of violence can be ruled invalid.

Of course, it would not be realistic to expect Assad and his henchmen to deliver themselves directly to prosecutors in The Hague. They are more likely to use their power in Syria to shield themselves and, if weakened, flee to Moscow or Tehran, delaying efforts to apprehend them.

In the meantime, negotiators face the difficult question of who should replace Assad. According to the Vienna declaration, that question would ultimately be decided by U.N.-supervised elections. But credible elections in war-torn Syria, where millions have been displaced, will take much time and preparation to organize.

In the meantime, it will be necessary to establish a coalition government by agreement. The Vienna declaration calls for “credible, inclusive, non-sectarian governance.” In practice, this will mean choosing political figures who have credibility among both Syria’s Sunni majority and the Alawite and other minorities whose members have largely turned to Assad for protection. The international community could facilitate agreement by insisting on the exclusion of people from any side who, through a fair, open, and contested process, are found responsible for serious abuses.

Achieving an accord along such lines depends on developing a level of trust among Syria’s warring factions that is currently lacking. It is difficult to shake hands with opponents who are killing one’s families and neighbors. That is why U.S. Secretary of State John Kerry is wrong to prioritize striking a deal over ending atrocities. Stopping the deliberate slaughter of civilians is not a byproduct of a peace deal, but a prerequisite for successful negotiations.

Kenneth Roth is executive director of Human Rights Watch. © Project Syndicate, 2016