Staffan de Mistura, the United Nations envoy to Syria, was a man on a mission when he left the “National Dialogue Talks” in Russia’s Sochi in late January. Having attended eight rounds of talks in the Kazakh city of Astana, convened as part of Russia, Turkey, and Iran’s alternative to the UN-led Geneva process since January 2017, he was given a mandate: to convene a constitutional committee. Astana had finally delivered something he could bring back under the Geneva umbrella—a necessary factor in moving the formal peace process forward. He will return to the ninth round of Astana talks next week with nearly nothing to report.
A new constitution might be a vital component of political settlement in Syria, but it would be folly to expect the United Nations and de Mistura to deliver a document that substitutes for a peace process when they already have repeatedly failed with much easier tasks. Still, the United States and European Union governments ought to support any effort to draft a new, inclusive constitution—provided de Mistura’s ambitions include a comprehensive set of articles that address the conflict’s root causes and threats to a stable and peaceful Syria.
The United States and European Union governments ought to support any effort to draft a new, inclusive constitution—provided de Mistura’s ambitions include a comprehensive set of articles that address the conflict’s root causes and threats to a stable and peaceful Syria.
Despite numerous complications and a notable lack of actual dialogue, Sochi’s attendees agreed to allow de Mistura to create a constitutional committee with 150 members, most selected by the Astana guarantors, but comprising, as well—in theory at least—members of the government, those members of the political opposition that are involved in the talks in Geneva, Syrian experts, civil society, independents, tribal leaders, and women. They also agreed to allow the UN-led Geneva process to set the mandate, powers, and parameters of the committee’s work. If the United States and the EU want to ensure the committee, and its mandate, are broad enough to address the legislative and political issues standing between Syria and a full recovery from years of brutal conflict, then it is these UN powers with which they must engage.
De Mistura believed his excitement was warranted. After the last round of talks in Geneva collapsed in December 2017 due to the Syrian government’s refusal to engage on the subjects of a constitution or elections, de Mistura hosted talks with the government’s delegation, and the Syrian opposition, in Vienna, in the days ahead of the Sochi talks, in an attempt to gain buy-in from both sides for a Sochi-endorsed, Geneva-led constitutional committee and drafting process. At meetings with diplomats in Europe and the United States following Sochi, he and his team spread the good word: a part of the apparently stalled peace process now had some momentum behind it.
No Ceasefire, No Cooperation
That initial enthusiasm is wavering, as it should be. The Astana guarantors are failing to follow through on their commitments, and events on the ground make it clear that the Syrian government’s policy of digging in their heels until the military situation allows them to proceed with the political situation as they wish is in play once again. In these circumstances, constitution drafting is a proxy for the stalled peace process itself, likely to descend into an endless disagreement while the military solution continues to play out. Geneva, on which the United States and many other western countries rely as their only legitimate path to a resolution of the conflict, is unlikely to offer any way out of such a quagmire.
In mid-February, the Syrian government stated that they would not be bound by a constitution drafted outside the country; and by mid-March, even de Mistura was vocalizing his frustration. “We have not yet received the complete inputs on the pool of candidates for a constitutional committee developed in Sochi, from the three guarantors,” he told the UN Security Council by video-link six weeks after Sochi. “There is still some serious homework to be done regarding the Syrian Government’s readiness to engage in implementing the Sochi Final Declaration and carrying forward a constitutional committee in Geneva.” He has repeated this frustration with the government of Syria’s resistance in closed-door meetings more recently.
Even more problematic, from the perspective of peace-building, is that a “ceasefire” agreement linked to the Astana-led “de-escalation” agreement has failed to materialize. Syrian and Russian forces have waged heavy military campaigns in eastern Ghouta and in the northern Homs countryside—two of the four “de-escalation zones”—which will undermine opposition faith in the peace process and the drafting of a constitution. This was highlighted when three prominent members of the Syrian National Coalition (SNC) resigned at the Brussels II Conference in April, citing the fact that “current efforts to reach a political solution to the Syrian conflict had fallen in line with Russian desires.” The comment was due to the influence of the Astana process and its guarantors on the peace process, to include the constitution.
In conflict environments, timing can be everything. Back in 2012, the Geneva Communique set out a clear plan for Syria’s political transition process, beginning with a ceasefire and transitional governance, followed by a national dialogue and constitutional review, and then by free and fair elections. In 2018, such a transition is a pipe dream. The 2015 UN Security Council resolution that is often referenced as the road map for the peace process says that the constitution drafting process is to take place as part of a broader political process that includes the creation of credible governance, as well as nationwide elections. These activities are to take place alongside a ceasefire. To date, there has been no credible or lasting ceasefire agreement, and the government of Syria seems determined to ensure there is no longer a need for one—favoring military victory over negotiated peace.
Is an Inclusive Committee Possible?
With the parties unable to agree on credible transitional governance, and even Saudi Arabia’s Crown Prince Mohammad Bin Salman publicly stating that Assad will remain in power, the constitution-drafting process is likely to become a substitute for a political or peace agreement itself. In the meantime, Assad will push on, determined that the process won’t be needed at all; and few Syrians will feel confident that a constitution will be implemented, even if it can be drafted. This mistrust places enormous pressure on de Mistura and those he brings into the constitutional committee as they attempt to draft a document that meets the needs of all Syrians.
De Mistura’s first hurdle will be the makeup of the committee itself. According to his interpretation of his mandate from Sochi, he has the ability to add committee members in addition to those provided by the Astana guarantors. Selecting members will be critical in ensuring groups beyond the most powerful military, business, and political actors aligned to each guarantor have a say in the process. Women’s involvement is critical, for example. According to Rajaa Altalli of Syrian nonprofit Center for Civil Society and Democracy, only 16 out of 168 initial names were women. In a February report, Inclusive Security says peace processes are more focused on inclusive and equitable conclusions when more women are involved.
De Mistura is likely to draw on Syrian Women’s Advisory Board—a group he brought into the peace process in 2016 following criticism about the lack of women in the process—though the makeup of this group has been criticized for having an opaque selection process, and a poor vetting process, resulting in a group that is not free from accusations of affiliation to one or another party in the conflict. The board comprises only twelve women, and does not serve as a replacement to embedding women into the process at all levels, as well as in discussions about the future of Syria. In order to complete the makeover, De Mistura needs to repeat these same infusions of women’s participation for each group that must be represented in the committee. This same process must then be repeated with all minorities and civil society groups. Ensuring that a wide variety of participants from across the political and geographic spectrum are represented will be no small feat.
Editing the Old, or Starting Over
If the UN can figure out who to include in a constitutional convention, the next possible breakdown point will be setting the agenda. Which version of the Syrian constitution will they revise? They might consider Russia’s draft constitution for Syria, or even starting from scratch. Russia’s 2017 draft, designed to be used as a basis for Astana-led talks around constitutional reform, has major spoilers, most notably the removal of any reference to “Arab” in the country’s name, the removal of the necessity for the president to practice the Islamic faith, and an increased focus on decentralization, in particular to Kurdish areas of the country. With the United States currently occupying the Kurdish-controlled northeastern areas, it is likely that even the Astana guarantors would find aspects of the Russian draft difficult to swallow.
It is unlikely the opposition would see the 2012 constitution, voted in by referendum during the early stages of the war, or its precursor, the 1973 constitution, as an acceptable starting point for discussions, due to the heavy focus in both documents on the Ba’ath Party, to which Assad belongs and to which his father, former president Hafez al-Assad, belonged. The younger Assad’s significant residual unilateral powers in the 2012 constitution would also be a significant obstacle. Working backward, the 1950 constitution—which predates even Hafez—was put forth in opposition circles in the early stages of the war as a potential intermediate constitution; but the opposition now has little influence, and the 1950 document would be a non-starter for Assad.
The third major hurdle will be the drafting itself. All recent iterations of the Syrian constitution include clauses on any and every matter, though they lack detail concerning implementation, which is largely left to the legislature to decide. Without an agreed-upon political process or transition, the drafting process will become the forum to adjudicate these matters of policy—and now even more certainly so, given the the broad understanding that Assad may remain in power. The primary concerns for Syrians of all stripes will be accountability, security concerns, locating detainees and missing persons, issues of citizenship and right of return, property rights, legal frameworks, and other nuts-and-bolts issues that are unlikely to be rectified by elections—even UN-supervised elections—at any time in the near future. All of these concerns must be factored into the constitution if they’re to have any hope of being addressed on down the road: there might not be another opportunity to ensure their consideration.
These issues have proved too contentious to discuss in the peace talks, a fact which has resulted in all parties simply kicking the can further down the road, and organizing the work of transition into four main activities that form the political processes, one of which is the constitution, instead of centering transition on the issues that these processes are meant to resolve. Those looking to these cobbled-together and avoidant negotiations for an end to the conflict, or even simply for a framework from which to move forward, will be disappointed.
The United States and the European Union have joined other countries in stating that a political settlement in Geneva is a key policy objective in Syria. The need for a revised constitution now has the support of the Astana guarantors, despite the slow progress. If a new constitution is to become central to the the peace process—a settlement-by-proxy—it is essential that these countries work with de Mistura as he confronts the challenge of getting all parties in Syria on board, and all the important issues facing the Syrian people addressed in the constitution’s drafting. Identifying those issues that must be addressed at the constitutional level, and ensuring they are embedded in the mandate and terms of the committee’s drafting process from the outset, may provide one of the only opportunities to effect positive—albeit incremental—change in Syria.