The Trump administration inherited the Syrian file whilst it was going through its worst early days. In early 2017, when Trump took power, the Assad regime, backed by Iran and Russia, had managed to displace more than 10 million Syrians and take control of large swathes of territory once held by different opposition factions. There were attempts to help the regime restore international legitimacy through bringing it back to the Arab League and opening a number of embassies representing it in several countries, especially by those who feared the rise of political Islam.
The Trump administration eventually managed to outline a coherent policy on Syria only two years ago, the confrontation of Assad’s regime part of its confrontation with Iran and implementing a policy of extreme economic pressure. The administration also threw its weight behind the political process represented by the call for enforcing UN Resolution 2254, supporting the work of the constitutional committee and backing and giving legitimacy to those who claim to represent the Syrian political opposition.
Here, the weakness of the Trump administration’s Syria policy emerged, with moves contradicting the crux of its strategy, which rested on not recognizing the military triumph of Russia and the Assad regime in the war and preventing them from taking political advantage of the ‘victory’ which Russia seeks to obtain through the constitutional committee.
Arguing that the constitutional committee is the practical implementation of Resolution 2254 is a political and legal mistake since the constitutional committee’s formation decision came in the framework of an agreement by the Sochi process countries: Iran, Russia and Turkey. It was not part of the political negotiations according to Resolution 2254. The formation of the committee itself and defining the mechanisms of its work were a gain by Russia on the back of its bleak military triumph, parlaying this into a major political victory, the polar opposite of the declared US policy of not recognizing Russia’s military victory in Syria with which the Trump administration once complied.
The political transition: The Assad regime’s perspective
The Trump administration has allowed the Assad regime and Russia to impose their own interpretation of political transition via the constitutional committee formed by the Sochi conference. This was clarified by the late foreign minister of the Assad regime, Walid Al-Muallem, who was quoted by Reuters on March 12, 2016, as stating:” The Syrian government’s understanding of the term ‘political transition’ is that [Syria] is transitioning from the current constitution to another constitution and transitioning from the current government to another government with the participation of the other side.”
This makes it clear that the regime’s vision and interpretation of the political transition process – provided for in the Geneva Communique and Resolutions 2118 of 2013 and 2254 of 2015 – is that it is merely transitioning from one constitution to another and from one regime-approved government to another, a vision expressed by Assad regime figures on more than one occasion since the Geneva Communique was issued.
The regime’s ally Russia has expressed the same vision, as seen in regular comments by Russian foreign minister Sergei Lavrov and in every Russian statement on Syria. The latest of these statements was made during Lavrov’s last visit to Damascus when he voiced support for holding a presidential election regardless of the outcome of the work of the constitutional committee. This indicates that the Trump administration supported and recognized the victories of Russia and the Assad regime through recognition and support of the Russian-led constitutional committee. This constituted an unjustified and incomprehensible mechanism backing Moscow’s vision, influence and investments in the Syrian war.
The core rules of procedure for Sochi’s constitutional committee
A noteworthy aspect of this is that the Trump administration, which has supported the work of the constitutional committee, has never imposed even the faintest bit of pressure on Russia and the Assad regime to prevent them from imposing their conditions on the Core Rules of Procedure governing the work of the constitutional committee. These rules represented a clear intensification of US submission to the will of the Assad regime and its Russian ally at the expense of all international resolutions, to the extent that we can say straightforwardly that these rules have clearly pulverized and made a mockery of Resolution 2254 of 2015.
The ‘participatory’ approach
According to the Core Rules of Procedure, we are not dealing with a negotiation-based political process in which two or three parties participate if we add civil society to the regime or the opposition. What emerged, however, was a workshop involving members from across the political spectrum with a wide range of differing affiliations. We find this participatory approach enshrined in a number of principles on which the Sochi constitutional committee was created, according to its internal regulations, with the most important of these being:
The rule of individual members’ votes, as opposed to delegations’ or representatives’ votes:
When there is a political or negotiation process between two sides, those two sides supposedly enjoy parity as two equal adversaries, each of which has its own will independent of the other. If we assume that there are two negotiation delegations, each of which is made up of 10 members, each delegate among them shall have one voice, one opinion and one position, not 10 voices. The principle of individual member votes proves that the core and essential point of what is happening in the committee is a participatory workshop involving members with different affiliations. Those members vote on an individual basis, not as a bloc or an opposition delegation, although this is a self-evidently vital and fundamental rule of negotiating delegations which nobody is being prompted to comply with or provide for.
The Sochil constitutional committee’s Core Rules of Procedure, specifically Paragraph 13 of Article 3, stipulates the following:
While large and small groups within the Constitutional Committee put forward proposals and take decisions by consensus where possible, voting otherwise requires support from a minimum of 75% of members in the respective body (i.e., 113 members present and voting in the large body, 34 members present and voting in the small body). This 75% voting threshold is to be a fixed feature.
After reading this article which needs no further interpretation, it becomes clear to us that in the Sochi constitutional committee, we’re not witnessing a political process or a process of political negotiation, as members of the committee claim. Instead, this is simply a joint workshop whose outcomes are put to the vote on an individual basis.
If we assume that the entire delegation representing the opposition and the entire delegation representing civil society voted in favor of a certain resolution, this does not mean the resolution is approved unless 13 members of the regime’s delegation vote in favor. This ensures that any vote is, in fact, consistent with the Assad regime’s and Russia’s worldview and vision which does not recognize the opposition as a party to the negotiations. For this reason, the regime embraced the individual-centered vote. If there had been a political negotiation or a technical process carried out as part of a political negotiation, the representative vote rule should have been embraced, with a vote for the regime versus a vote for the opposition and a vote for civil society.
Those who agreed to pass this Core Rules of Procedure made a dangerous error and bear responsibility for obliterating the political negotiation process and enabling the Assad regime administration to have total control over the results. All this means that there is no room for making any amendments or rewording any constitutional provision without the regime’s approval.
One might argue, of course, that the same rule also applies to the regime, which also cannot pass any resolution without the approval of the opposition and 13 members of the civil society delegation. Theoretically and technically, this is correct. Politically, however, it is absolutely wrong.
Those seeking to have a genuine democratic new constitution for the country are the Syrian people, not the regime. The regime, as we all know, does not want this to happen. The choice of the individuals-centered voting rule enabled the regime to control the course of the constitutional process, whether we admit it is consistent with Resolution 2254 or not, without bearing responsibility for its obstruction or any consequences since the committee as we have said does not represent the regime, opposition and civil society, instead representing individuals belonging to these three blocs
2. The joint chairmanship rule
Some argues that the joint chairmanship of the Sochi constitutional committee is evidence of balance and equality between the regime and opposition. Unfortunately, this is another misleading argument since, in the Sochi committee, we don’t have three delegations, but single members – in equal numbers – who represent three political blocs.
This, again, is totally different from having three delegations sitting around the negotiation table. The rule of joint chairmanship unequivocally clarifies this issue. Paragraphs 14, 15 and 16 of Article 4 of the Core Rules of Procedure speak of the powers of the two co-chairs who should proceed in consensus (as stipulated in paragraph 15).
Together, the co-chairs have the functions of: chairing and guiding meetings and sessions;
proposing and ensuring observance of rules of procedure; identifying and inviting speakers; promoting gender mainstreaming, and receiving and putting forward ideas on the work as may be appropriate (paragraph 16).
This paragraph indicates that the co-chairs guide a host of respective members, not negotiation delegations. Therefore, every single member has the right to speak, raise whatever issues he or she wants and introduce any memoranda or proposals he or she deems appropriate. This is totally outlandish in the context of a political process. As we mentioned earlier, negotiation delegations should speak according to one vision, and one position for each delegation. In negotiation situations, none of the individual negotiation delegations’ members has the right to raise whatever subject he or she deems appropriate or even speak on that issue without first obtaining permission from the chair of his delegation.
All this means that those who propagate the claim that the course of Sochi constitutional committee is part of the political trajectory either haven’t had access to the rule of procedures regulating their work, or have read it but insist on embracing the deceptive ideas put forward to the Syrian people.
The Assad regime is, effectly, being given the key to approving the constitution
Paragraph 23 of the Core Rules of Procedures’ Article 7 stipulated the following:
. The Constitutional Committee shall agree on the means of popular approval and transposition into the Syrian legal order of the constitutional reform adopted by the Constitutional Committee, and it may seek the good offices of the Special Envoy as may be needed.
Maybe this paragraph which came at the conclusion of the Core Rules of Procedure is the most dangerous provision. It not only destroys the political trajectory based on the Geneva Communique and Resolution 2254 but it also practically destroys the constitutional process.
Unfortunately, inserting the term ‘constitutional reform’ into the Syrian legal system, will lead us to the following possibilities:
The first possibility: The Sochi constitutional committee could result in constitutional amendments, according to the jurisdiction of the committee. According to Paragraph 8 of the Core Rules of Procedures’ Article 1, the Constitutional Committee may review the 2012 Constitution including in the context of other Syrian constitutional experiences and amend the current constitution or draft a new constitution.
In this case, the process of approving amendments or inserting them into the Syrian legal system will be governed by Article 150 of Bashar al-Assad’s 2012 constitution, which literally stipulates that:
- The President of the Republic, and a third of the members of the People’s Assembly, might propose amending the Constitution;
- Any proposal for amending the Constitution shall state the text proposed for amendment and the reasons for making the amendment;
- As soon as the People’s Assembly receives the proposal for amendment, it sets up a special committee to examine it.
- The Assembly discusses the proposal for amendment. If it is approved by a three quarters majority, the amendment shall be considered final, provided that it is also approved by the President of the Republic.
This is the only path for the constitutional amendment in Syria according to the 2012 constitution, i.e. the approval of two thirds of the members of the People’s Assembly provided that the president of the republic also approves the amendments.
The second possibility: The committee’s work leads to a new constitution. If this happens, the new constitution can be approved only by referendum. This takes us to Article 116 of Syria’s 2012 constitution which stipulates:” The President of the Republic might call for a referendum on important issues which affect the higher interests of the country. The result of the referendum shall be binding and come into force as of the date of its announcement; and it shall be published by the President of the Republic.”
In both cases, the constitutional committee has a one-way path leading only to Bashar Al-Assad. Based on these points, as soon as a decree is issued by the criminal, Bashar Al-Assad, calling for holding a referendum or approving amendments, this means legitimizing the entire era of Bashar Al-Assad and all his heinous actions over the past years.
For all these reasons, it would be useful for the incoming US administration, if it wishes to resolve the Syrian crisis, to return to work on implementing UN Security Council Resolution 2254 according to the sequence set out in the resolution rather than leaving Syrians’ fate in the hands of Astana’s three parties or Moscow or Tehran.
Several steps could be taken to help the Syrian people in parallel, including:
First: Holding election for the opposition in which the greatest numbers of Syrians overseas shall participate in electing new leaders with popular legitimacy according to the recognized institutions of the opposition, who will be capable of making decisions in favor of the Syrians free from considerations of other regional conflicts which have caused harm to the Syrian cause.
Second: Washington can exert pressures by holding a comprehensive international conference which leads to a serious political solution. Previous experiences, such as the Cambodian experience or the political transition in Romania which were significantly successful, could be helpful in this respect.
Third: Setting a final deadline for the constitutional committee to reach outcomes and obtain approval for them by the UN Security Council, or face disbandment.
Fourth: The UN shall outline monitoring mechanisms according to the internationally-recognized standards for the coming presidential election.
Fifth: Redefining the mission of the UN special representative for Syria.
All these are only suggestions. Without action to change course in Syria towards democracy for the long-suffering Syrian people without giving Iran upper hand of the future of Syria and without giving any minority group upper hand in any area in Syria the current horrendous situation will not change.
Bassam Barabandi is a former Syrian diplomat who resides in Washington.
This article does not necessarily reflect the opinion of The Syrian Observer.