Syria: The beleaguered Syrian Constitutional Committee meets again

The Syrian Constitutional Committee is the UN’s primary means of keeping the Syrian government and opposition talking but remains stalled after five rounds of talks. The problems of the SCC are many and the search for a political solution to the conflict in Syria is an uphill task. Despite the many criticisms and setbacks, the SCC should continue as it is currently the only viable intra-Syrian forum and its benefits might only be seen in the long-term.

It can be argued that the history of mediation and negotiation in the Syria conflict is as convoluted and interlocked as the fighting itself. The Arab League intervened unsuccessfully during the 2011 uprising and there has been two distinct international processes in the form of UN-led talks, primarily held in Geneva, and that of Russia, Turkey, and Iran, primarily held in Nur-Sultan (previously known as Astana). There have also been bilateral talks between various actors, international conferences such as the Friends of Syria, opposition conferences, negotiations leading to the lifting of sieges of towns held by opposing sides, and so on. Mediation and negotiation have taken place within Syria and at the regional and international levels, usually dominated by the interests of third parties, and hobbled by the fact that while many profess to wanting peace, they also want it on their own terms. One outcome of talks at the international level is the Syrian Constitutional Committee, which has been slow to get off the ground and after five rounds is gridlocked.

The SCC consists of 150 members acting as a ‘large body’ and a smaller 45 member ‘small body. The large body is split evenly between 50 government nominated delegates, 50 opposition delegates nominated by the Syrian Negotiations Commission, and 50 members of civil society nominated by the UN. The small body is split evenly with 15 members from each of the three groups and prepares and drafts constitutional proposals for the large body to discuss and adopt. The SCC talks are understood to be intra-Syrian talks and are co-chaired by a government and an opposition representative.

The idea of a drafting a new Syrian constitution is specified in UN Security Resolution 2254 of 2015, which drew on the earlier Geneva and Vienna communiques. It is seen again as one of the four ‘baskets’ from the fourth and fifth Geneva talks in 2017. During the Syrian National Congress of 2018 in Sochi the formation of a committee to write a new constitution was introduced as part of a twelve-point plan. In October of 2018 objections from Damascus over the choosing of civil society actors led to the UN Special Envoy to Syria (then Staffan de Mistura) accusing Damascus of obstructing the formation of the constitutional committee and in November de Mistura set a deadline of December for the government and the opposition to reach an agreement on the formation of the constitutional committee. This remained unresolved at the Astana talks in November. It was not until July of 2019 that the current Special Envoy, Geir Otto Pederson, was able announce progress in forming the committee and its actual formation on the 18th of September. In all, there has been five rounds of talks, with little produced beyond discussing the ‘basic principles’ of a future Syrian constitution.

Much of the blame for the failure of the constitutional talks to progress beyond basic principles has been laid at the door of the Assad regime. Its intransigence is a problem that has been present since the uprising of 2011 and is for two reasons. The first, evident during the uprising and early attempts by the Arab league and UN, is that the regime had no intention of relinquishing an iota of control. The second, coming to the fore once the regime had survived and begun to take back control of the cities, is that the regime believes itself to be secure and that it can also win the war. Its incentive for attending talks is that it wishes to regain complete control over Syria and seeks to achieve an opposition surrender via negotiation. There is also the matter of Assad’s government being nudged into attending talks by their Russian backers. The regime has much experience in negotiating surrenders once its opponents have been hammered into the ground. The establishment of four de-escalation zones proved to be a means for the government and its allies to eliminate the opposition piecemeal, leaving a zone centred on Idlib province in the north. The defeated opposition were given a stark choice: remain under government and Russian supervision or be bussed to the northern de-escalation zone. A general understanding in conflict resolution is that for the parties to a conflict to reach the point where they will negotiate, they need to have reached a realisation whereby a military victory is unachievable, but a political solution is. This has never been the case for the government side and critics who argue that the government has no genuine interest in negotiating a new constitution point to the fact that with presidential elections due in 2021, the regime simply needs to stall the constitutional talks until then.

A further problem is the division amongst the opposition over the constitutional committee. This does not count as a surprise in any sense as the complexity of the opposition to the Assad regime dates back far before the constitutional committee was conceived. There are four Syrian groupings vying for territory in Syria: the government, the Kurds, ISIS, and an opposition that encompasses a spectrum of shifting groups and alliances ranging from moderate, through Islamist, to Jihadist. This is the simplest description that can be made of the actors at the national level and excludes regional actors such as Turkey and Iran, and global actors such as Russia and the United States. While ISIS and the jihadist Hayat Tahrir al-Sham (HTS) can be discounted in terms of participation in the constitutional committee, and the underrepresentation of the Kurds (divided within themselves and in conflict with Turkey and some opposition groups) noted, the differences within what we understand as ‘the opposition’ are stark. While some see the SCC as a critical turning point towards achieving a political solution, others have criticised the qualifications of the participants and see it as futile. The opposition membership of the SCC itself are a mixture of delegates from different ‘platforms’ and it can be argued that the opposition members are a constitutional committee in themselves.

The Syrian Negotiations Commission is clearly committed to the SCC but there has been criticism from human rights groups and activists that if the SCC were successful it would prevent a transition of power, allow war criminals to evade justice, and the regime to fulfil its military objectives. One argument is that is that the declaration of a transitional body for Syria should precede the establishment of a constitutional committee as the current situation means that UN Resolution 2254 would be bypassed, along with its requirement for the creation of a political process leading to an elected governing body and a new constitution. Despite the enthusiasm of the UN Secretary General and Pederson for the SCC, it is a far cry from the political transition called for in the early days of the war and has little prospect of resulting in Assad relinquishing power or human rights violations being addressed. It is also the case that while the SCC draws on the major components of the opposition and includes the Syrian Negotiations Committee, the High Negotiations Committee, Moscow Platform and National Coordination Committees, these are backed, respectively, by Turkey, Saudi Arabia, and Russia, meaning that there is a heavy foreign influence on what should be intra-Syrian talks. It is not much of a stretch to say that the international influence on a purportedly Syrian-led constitutional committee is not far removed from that seen in Syria itself.

Given all the above, why would there be an argument to continue with a process some see as illegitimate and a dead end? This would have to go beyond ‘because this is all that we have’, as the likelihood of any agreement being reached before the presidential elections put Assad back in power for another seven years is low and means that any benefits might not be seen before 2028.

Firstly, we must consider that the existence of the SCC means that Syrians are in a room talking about the future of Syria, however limited the scope of their discussions or the current prospects for an agreement. The only people who should have the ultimate say about the future governance of Syria are Syrians themselves, not the interested parties that contribute to the conflict and have their own desired outcomes. Secondly, support from amongst the opposition for the SCC is strong, despite the divisions and the objections of critics and they should be allowed to continue talking but with the voices of critics heard. Thirdly, the situation in Syria is not stable and may change. While the regime believes itself to be secure it is dependent on foreign support, reliant on the cooperation of opposition groups reconciled to the regime to govern some parts of the country, cannot advance in Idlib due to Turkish involvement and where HTS holds sway, must accept de facto Kurdish self-governance, and still has an ISIS presence in the east. The assumption that the Assad regime has won its war or that it is a permanent fixture is flawed. Any change in its situation may affect its stance in talks and abandoning the slither of hope that is provided by the current forum could also mean abandoning unanticipated gains in the future. This relates to a fourth argument, which is that peace processes crystalise into a visible termination of armed conflict only after they reach their end. There are successes and failures along the way and the outcome may simply shift the conflict from the military to the political, but the violence does end. Having the warring parties in the same room or forum is major step towards this.

This said, the voices of the critics should be heard and arguments that the current focus of the SCC leaves an unaccountable government in charge and offers little prospect of reform addressed. A major flaw in the early UN-led process was that it assumed from beginning that Assad would go, deciding the outcome of the talks before they took place and leaving the regime with little to talk about. For now, it looks like Assad is in fact staying where he is and the regime remains in place, with the discussion of constitution taking place instead of talks on political transition and effectively replacing them. The assumption has been reversed. This does not mean that the talks should not continue, far from it, but it does mean that the remit of what the UN-led process is looking at needs to widen. The Geneva talks presented three more ‘baskets’ alongside that of drafting a new constitution. Two of these were free and fair elections and the creation of a non-sectarian government, drawing on resolution 2254, which called for a political process and a transitional government. What were once seen as credible solutions now seem ambitious to the point of absurdity but as noted above, circumstances change, and the future is unknown.

Dr Carl Turner, Conflict Resolution Analyst.

The above is part of ongoing research on mediation and negotiation in Syria and draws on a working paper to be published on the CARIS website. This blog has been written using open-source news sites, which include The Syrian Observer, The Arab Weekly, and Al-Monitor. The formation of the SCC and critiques were sourced from Syria Direct https://syriadirect.org/news/%e2%80%98the-constitutional-committee%e2%80%99-a-return-to-a-political-solution-or-evasion-of-international-resolutions-a-timeline/,  North Press Agency https://npasyria.com/en/53453/ and the UN https://undocs.org/en/S/2019/775.

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