What the Syrian Constitutional 'Declaration' says about Transitional Justice in Syria
News European Parliament taken by © LOUAI BESHARA / AFP. Available at: https://www.europarl.europa.eu/news/en/press-room/20250310IPR27229/the-eu-must-support-the-political-transition-and-reconstruction-of-syria
Author: Lily
The New Temporary Syrian Constitutional Declaration (Constitutional ‘Declaration’), signed by President of the Transitional Government, Ahmad Al-Sharaa on the 13th of March, has been the source of much controversy. While showing some signs of hope for freedoms being granted, many alarming provisions are included in the ‘Declaration’ that point to a reluctance on the part of the Transitional Government to expand the scope of power-sharing. That said, it represents an important part of the transitional period Syria is now experiencing and we should therefore look at its political value in addition to its legal one.
The signing of the Constitutional ‘Declaration’ comes after a 14-year war with countless instances of international interference and a record number of human rights violations and crimes committed in the country. Now, the Transitional Government has the hefty task of guiding the transitional process in as harmoniously as it can.
Transitional President Ahmad Al-Sharaa signing the Constitutional Declaration. Source: SANA. Available at: https://www.intellinews.com/al-sharaa-appointed-as-syrian-president-for-five-years-after-signing-constitutional-declaration-371555/
In effect, the Transitional Government has highlighted the importance of transitional justice on numerous occasions. Since the fall of the Assad regime on the 8th of December 2024, it has established many committees to facilitate the transitional period, all of which were appointed through a top-down approach. Recently, one such Committee, the Committee on Drafting the Constitutional Declaration, showed the fruit of its work. This Committee published its final product only a few weeks after being formed, which left many wondering how they were able to accomplish such a deeply decisive, complex and technical task in such a short time-frame. This reality has led to a Constitutional ‘Declaration’ with much room for improvement.
The Positive Sides of the Constitutional ‘Declaration’
The Constitutional ‘Declaration’ includes a section on the rights of citizens expanding on the rights provided under the era of the Assad regime. For example, Article 13 provides for the freedom of speech, expression and media as well as the protection of citizens’ private lives and Article 14 allows for the creation of political parties, associations and unions. It must be noted however that such provisions are provided for in more general language than the 2012 Syrian Constitution (See Article 8 on political parties, and Articles 42-45 on freedom of speech/assembly and forming associations and unions).
The Constitutional ‘Declaration’ also protects women and children’s rights to a certain extent. Article 21 specifies that women have the right to education and work, while Article 22 stipulates the State’s obligation to “protect children from exploitation and abuse and guarantee their right to education and healthcare.” These are important provisions for a transitional period in a country having to rebuild much of its infrastructure and fundamental rights for its citizens.
Further developments to the law were made that could provide an avenue for justice, truth and non-recurrence of past violations, all important values of transitional justice. Namely, Article 18(1) criminalises enforced disappearances, and acts of physical or mental torture, removing the statute of limitations on the latter crime. It is worth noting that enforced disappearances as a stand-alone crime is codified in the national laws of very few countries. This provision is crucial to address and recognise the gravity of this crime in a country with approximately 177,021 cases of enforced disappearances. Additionally, Article 12(2) recognises International Human Rights Treaties and Agreements ratified by Syria as an integral part of the Constitution. This means that all current or future international treaties or agreements ratified by Syria will directly apply to Syrian domestic law, rather than having to be decided on once again in a separate law, thereby providing further legal protection to the people. This provision is crucial where Syria has already ratified conventions such as the Convention Against Torture and the International Convention on Civil and Political Rights. It can also be decisive if Syria ever ratifies the Rome Statute for the International Criminal Court.
Prison cell doors broken after Sednaya prisoners were released. Source: France 24 By © Mohammed AL-RIFAI / AFP. Available at: https://www.france24.com/en/live-news/20241209-prisoners-stagger-free-from-syria-s-slaughterhouse-jail
Another positive step towards justice seen in this Constitutional ‘Declaration’ is through the setting up of a ‘consultative’ and ‘victim-centered’ Transitional Justice Commission. The mandate of this Commission is supposedly to determine “accountability, the right to truth, and justice for victims and survivors, in addition to honoring martyrs” (Article 49(1)). No further information is given as to the modalities of work of this Commission, but given the speed at which the Transitional Government is working and the organised work of the Syrian civil society, the composition of this Commission is soon likely to be published. This Commission could be a window into holding accountable past, current and future perpetrators of violent crimes.
Meanwhile, Article 49(2) provides that war crimes, crimes against humanity and genocide do not benefit from the principle of non-retroactivity of laws. This means that perpetrators of these crimes can be brought to justice even if they committed one of these crimes before this law was passed. This opens the door for war criminals to be tried.
Finally, Article 49(3) bans the glorification of Assadism and its symbols, and denialist speech with regards to the crimes committed by the Assad regime. This provision is important in light of the years of denialism and hate-speech promulgated by Assad, his allies, and his sycophants. It comes after a fierce mis/disinformation campaign about serious war crimes committed by the Assad regime, like its use of chemical weapons to bombard civilian areas. Whereas it is true that such a provision, if not applied with care, could be manipulated to silence dissenting voices, it is an important step towards recognising the pain faced by victims of the Assad regime’s brutal crimes.
The Negative Sides of the Constitutional ‘Declaration’
Despite the above, the provisions of the Constitutional ‘Declaration’ leave much to be desired. Some legal experts, like Anwar al-Bunni and Riad Ali have emphasised that this Constitutional ‘Declaration’ is indeed not a ‘Declaration’ but a Temporary Constitution in and of itself. In effect, the document does not devote much room to how the permanent constitution will be written or specifically set up an environment for elections that would bring the country out of the transitional phase. Riad Ali, Senior Legal Adviser at Syrians for Truth and Justice, in a side event to the Human Rights Council Sessions expressed his fear that this Temporary Constitution could form the basis for the Transitional Government’s longer-term consolidation of power.
Provisions that support this view are largely the ones allocating power to the incumbent Transitional President, i.e. Ahmed al-Sharaa, to appoint the core members of the new government. For instance, Article 24(3) allows full liberty to the president to appoint a third of the members of the interim parliament, while Article 24(1)(2) provides that the president selects the members of the High Committee on the Selection of Members of the Parliament which in turn select the other two thirds of the interim parliament. Meanwhile, Article 25(2) provides immunity to all members of the interim parliament. This means that the president can appoint who he sees most fit for the interim parliament job, and this person could benefit from not being held accountable if they committed war crimes or violations in the previous years. Similarly, Article 35 gives authority to the president to appoint all ministers. This issue is directly translated into the controversy of people like the Minister of Justice, Shadi al-Waisi, being appointed without fully addressing his disputed past of overseeing the 2015 execution of two women in Idlib.
In addition, the interim parliament is given the power to write up and decide on new laws and on a general amnesty (Article 30(1)(a)(e)). Thus, the Temporary Constitution gives the president the power to decide the fabric of the government and gives the government the power to decide who benefits from immunity and amnesty. All this is done without consultation with the civil society, which risks having serious repercussions on the above-mentioned ‘consultative’ transitional justice process that the Temporary Constitution aims to achieve.
Much more can be said of the content of this text, but one last point is crucial to mention: the decision to stick with elements of the status quo. Particularly, the Temporary Constitution affirms that the full name of the country will remain the ‘Syrian Arab Republic’ and that the president of the country should be Muslim (Article 3). These provisions may fuel an already tense situation with some minority communities in the country. For instance, a few days after a landmark deal between the Syrian Democratic Forces (SDF) in the Northeast and the Transitional Government to integrate the SDF into the Syrian government, the SDF administration stated that the Temporary Constitution went against “the reality of Syria and its diversity”. It is important to mention that the aforementioned deal was not finalised and that despite SDF reservations to the Temporary Constitution, any stagnation in talks between both parties cannot be solely attributed to the signing of the Temporary constitution. The Druze spiritual leader, Sheikh Hikmat al-Hajari, also rejected the Constitutional ‘Declaration’ saying that it fails to meet “Syrians’ aspirations”.
A meeting between the Syrian Democratic Council (MSD), the Syrian Democratic Forces (SDF), and the Autonomous Administration concluded with agreements reached with Damascus – February 17, 2025 (Abu Omar al-Idlibi/X) Source: Enab Baladi. Available at: https://english.enabbaladi.net/archives/2025/02/sdf-decides-to-merge-with-syrian-army/
These provisions naturally bring up fears that the rights provided by the Temporary Constitution could be tokenistic. In order to counter these fears, the Transitional Government will have to show a large amount of political will to practically provide the rights in this text, and not just leave them as words on paper. Holding transparent and attentive meetings and negotiations addressing the concerns of the minority communities in Syria could be another way for the Transitional Government to demonstrate its political will for positive change.
Avenues for Contestation
The goal of looking at the Constitutional ‘Declaration’ in this way is not to present mere criticism, but to open a space of free and frank discussion on the transitional process in Syria. After 14 years of revolution, the values of accountability, transparency, justice, democracy and inclusive political participation have been irreversibly built by the Syrian people. Now is not the time to return to policies that limit the huge potential for the post-Assad Syria.
Importantly, even with the Constitutional ‘Declaration’s laws being set up in this way, there is still room for contestation and advocacy against a rigid imposition of governance. The rights guaranteed in the text can be used to constantly remind the Transitional Government of its transitional duties towards the Syrian people throughout the lengthy 5-year transition period Syria is now entering. Members of the civil society can continue to convene and strategise to form a strong presence in front of the Transitional Government, as a reminder of the technical knowledge that each person in the civil society has. Now, these meetings and conferences can happen in Syria, unlike under the Bashar al-Assad regime.
Finally, continuous appeals to Ahmed Al-Sharaa himself may promote amendments to the Temporary Constitution or even influence the way in which the permanent constitution will be written. This is because he has the power to object to laws and suggest new ones (Article 39). As such, there are avenues to open a discussion, but they require deep political will by the incumbent government to listen to all the Syrian population’s concerns and a desire to move on from a model of limited political representation.
The writing of the Constitutional ‘Declaration’ is an important political step, but it must be followed with concrete legal action to continue on the path of transitional justice.