By Geoff Moore
As the Syrian conflict enters a new phase in Geneva this month, United Nations envoy Staffan de Mistura will have a lot more on his plate than Swiss chocolates. In lieu of the largely successful cessation of hostilities (See this article at Carnegie on the term) in Syria, progress has been made on the diplomatic level as Syrian officials and opposition look willing to talk peace in Geneva (Geneva III). These significant developments have intensified the debate in Western media, which has been raging for some time, over whether ISIS or Bashar al-Assad should be removed first. This question has been posed repeatedly in US presidential primary debates and a Google search for any variation of “ISIS and Assad” will keep you reading for days. Jeremy Shapiro of Brookings (and formerly the US State Department) recently wrote in this Vox piece that President Obama’s 2011 statement that “Assad must go,” was essentially an unforced error, and “our myopic focus on ending his rule has distracted us from our actual objectives.” Yet, Assad’s future remains perhaps the most divisive issue to be discussed in Geneva.
The “ISIS or Assad” question continues to bounce around like a hot potato, and it is worth considering why. The most obvious answer is that Syria’s civil war is in many ways a proxy militia war, with Iran and Russia backing Assad, while the Saudis, Turks, and much of the West oppose him. Fair enough. But this explanation fails to address ISIS. Back in October 2015, David Ignatius argued that “a campaign against ISIS that doesn’t include the goal of bringing new leadership to Syria is short-sighted. And yet fears that a freewheeling regime collapse would give way to warlordism and terror across Syria are justified.” Ignatius was essentially arguing for a comprehensive western strategy that includes military and diplomatic action. I want to emphasize the phrase “goal of bringing new leadership in Syria.” This does not state when or how Assad would be removed, but suggests that he should be removed at some time. Shapiro’s point that “war without Assad is still war,” coincides with the recognition that removing Assad is not a strategy, and it could further complicate the war with ISIS.
There is a second answer to the “ISIS or Assad” question, and its logic is based in the academic field of transitional justice. First, it should be repeated that “war without Assad is still war.” What I mean by this is that the idea of a political transition in Syria coexisting with militias and groups such as the al-Nusra Front and ISIS is nonsensical. Regardless of who is in charge of the Syrian state now, the whole point of negotiations is to determine how all parties can reach an agreement about the peaceful future of that country. The operative phrase in that sentence is “peaceful future,” not “the Syrian state now,” so while the west might sympathize with the desire of the Syrian opposition to be free of Assad, we shouldn’t be putting the cart before the horse, as Obama and many others have done, while treating ISIS as an unrelated issue. This brings us back to Shapiro, who says Assad is “an asshole of historic proportions and [he] deserves to face international justice.” As noted above, Shapiro describes this as a distraction, but it is a classic example of the peace vs. justice dichotomy.
The peace vs. justice dichotomy is a widely acknowledged aspect of the political transition process. What it largely boils down to is the idea that parties to a transition will determine whether or not the transition to democracy will emphasize peace and stability (a restorative approach) or instead opt for justice, transparency, and accountability (punitive/retributive approach). Ruti Teitel, who literally wrote the book on “Transitional Justice,” describes this as “an agonizing choice between justice and impunity.” Yet, just like “Assad vs. ISIS,” the “peace vs. justice” dichotomy is increasingly recognized as a false choice. Indeed, it can be argued that the United States chose justice over peace in Iraq, perhaps by necessity due to its strategic failings. However, even though the US captured Saddam Hussein and had him tried in court, many Iraqis were (and remain) convinced that he was not held responsible for all of his crimes. So while the US emphasized justice over peace by aggressively pursuing Saddam and the Ba’athists, it attained nothing but a long military occupation and a fragile state. The “de-Ba’athification” of the Iraqi military and other institutions further exacerbated sectarian tensions, and led to a consistently futile reconciliation process. As The Guardian’s editorial board wrote in December, any policy which “smacks of the de-Ba’athification that was such a disaster in Iraq must be avoided.” Libya is another warning for those who wish to remove Assad in Syria before a transitional process begins.
Ironically, some of the leading voices behind the calls for Assad’s removal come from the Syrian opposition groups. This raises the question of local ownership of justice in Syria. As alluded to above, many Iraqis wanted to have Saddam and members of his regime tried in court for their crimes. However, this raises the question of “whose court?” When the state is weak, it is unlikely that citizens or outsiders will regard a local or national court’s decisions as legitimate, so this responsibility (in theory) tends to find its way to the International Criminal Court. Yet in Syria’s case, the likelihood of Assad being tried for war crimes is small because Russia, a permanent member of the UN Security Council, has already used its veto power to prevent the Syrian crisis being referred to the ICC. The most likely alternatives then are a negotiated deal, and/or exiling of the Syrian President. These options will not be seen as “justice” in Syria, but they may allow for a peaceful post-conflict period. It is time for the west to seriously consider their validity, and for the Syrian opposition to consider their merit. Peace and justice do not have to be mutually exclusive, but it is worth considering that impunity can be temporary, unlike the consequences of war. One could compare Syria to the Bosnian war, which was ended by the 1995 Dayton Accords. For all of the shortcomings in that agreement, it did not prevent the International Criminal Tribunal for the former Yugoslavia from pursuing charges against Bosnia’s belligerents.
As argued recently by Dominic Tierney, the Assad vs. ISIS question “hinges on the definition of “transitional.” This will largely be settled by the negotiation process, so international actors will likely make this determination. That is not to say the regime and opposition have no sway, but they will be constrained within a range of acceptable options.
Although Shapiro is right to say that “[j]ustice is not the same as peace,” it is not true that “we have to choose.” Although Shapiro suggests we should choose peace, his view that the Assad “regime cannot long survive a negotiated peace,” is lazy and dangerous. The most comprehensive Syria strategy would pursue both peace and justice. Furthermore, it would also recognize that as much as Assad deserves to be held accountable, buying into the peace vs. justice dichotomy now could risk the best chance in years at achieving a negotiated peace in Syria. Put another way, if you take a box of Swiss chocolates to a dinner party you don’t throw away half of the box before you arrive.
 See Staffan de Mistura’s interview with Al Arabiya here: http://english.alarabiya.net/en/webtv/programs/special-interview/2016/03/11/De-Mistura-Plan-A-go-to-talks-Plan-B-return-to-the-war-.html.
 Teitel, Ruti G. Transitional Justice. Oxford University Press, Oxford and New York, (2000) pg. 78.
 See: Priscilla Hayner, Unspeakable Truths (2011); Nenad Dimitrijevic, “Justice beyond Blame: Moral Justification of (The Idea of) A Truth Commission.” The Journal of Conflict Resolution, Vol. 50, No. 3, (2006); Geoff Dancy, Hunjoon Kim and Eric Wiebelhaus-Brahm. “The Turn to Truth: Trends in Truth Commission Experimentation.” Journal of Human Rights, Vol. 9:1 (2010).
Image by Jack Ohman-Tribune Content Agency.