Foreign Relations & International Law

A Primer on Syria’s Constitutional Committee

Nicholas Norberg
Saturday, December 22, 2018, 4:29 PM

As new U.N. Special Envoy for Syria Geir Pedersen prepares to assume his position on January 7, it is an opportune time to revisit the Syrian constitutional drafting effort and its role within the larger Syrian peace process. The constitutional committee was a central goal of Pedersen’s predecessor, Staffan de Mistura, who announced his resignation as the U.N.’s Syria Envoy in October.

Syrian President Bashar al-Assad with Russian President Vladimir Putin (Source: The Kremlin)

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As new U.N. Special Envoy for Syria Geir Pedersen prepares to assume his position on January 7, it is an opportune time to revisit the Syrian constitutional drafting effort and its role within the larger Syrian peace process. The constitutional committee was a central goal of Pedersen’s predecessor, Staffan de Mistura, who announced his resignation as the U.N.’s Syria Envoy in October. De Mistura worked for nearly year to convene a drafting committee by the end of 2018, and did so with Russian support. He was ultimately unable to overcome resistance from Damascus, and announced his failure to secure a date for the constitutional committee during his last statement to the Security Council on December 20. The admission followed President Trump’s December 19 decision to withdraw troops from Syria, a move Russian President Putin called “correct.” A U.S. withdrawal removes an important pressure point from the Syrian landscape, and enables Russia to press its agenda virtually unobstructed. Nonetheless, the U.N. is likely to remain committed to convening a constitutional committee despite successive frustrations because both the U.N. and Russia see it as vital to progress in the broader Syrian peace process.

Pedersen is likely to continue prioritizing the constitutional effort, but will need to find a way to keep it relevant as the Syrian strategic landscape shifts in response to the U.S. withdrawal. Recalling the origins of the constitutional committee contextualizes its importance to both U.N. and Russian negotiators—despite resistance from Damascus—and highlights the challenges of continuing to prioritize it. This post serves as a primer on the emergence of the constitutional committee as a central component of the broader Syrian peace process.

Syria’s Current Constitution

The current constitution governing Syrian government territory was adopted in 1973, and was revised by referendum in February 2012. Protests began in Syria in 2011 after an uprising in Tunisia forced Tunisia’s dictator into exile and inspired Syrians to rise up against Bashar al-Assad. The Syrian government aimed to appease protesters with a constitutional referendum and other reforms in 2012, but the move drew criticism because it took place in the midst of intensifying government violence against protesters. Critics also worried about vote manipulation during the referendum, in light of the regime’s claim that 89.4 percent of voters supported the proposed amendments. Whether voter fraud or an opposition boycott was to blame for the inflated figure, the referendum was far from representative.

The amendments on the ballot contained some constructive reforms, but most opposition parties felt they did not go far enough. The most significant change altered the 1973 document’s Article 8, which stipulated Ba’ath Party control over politics. The new Article 8 allowed for the registration of political parties as long as they were not organized by regional, sectarian, professional or racial criteria. The amendments also introduced competitive presidential elections and term limits, mandating that Bashar al-Assad run for office and restricting him to two terms of seven years. The opposition did not see the reforms as sufficient to secure its demands for Assad’s immediate removal as president and for the dissolution of the Ba’ath Party. These demands stemmed from concerns that Assad would find a way to remain in power even with moderate changes to the constitution and electoral system. Taken together, the regime’s violent repression of protesters, the allegations of vote manipulation, and the rebels’ dissatisfaction with the extent of the amendments make the 2012 document make a poor template for contemporary constitutional negotiations.

The Long and Winding Road: Convening a Committee

The Syrian peace process consists of a meandering series of summits, many of which produced few to no results. They fall into two main categories: the U.N. track of negotiations (the “Geneva format”) and the parallel Russian-sponsored track (the “Astana format”). The U.N. negotiations date to the earliest days of the conflict, and were initially organized around the principles of then-U.N. Syria Envoy Kofi Annan’s 2012 “Six-Point Plan.” The Six-Point Plan called for government and rebel forces to stand down immediately, for the appointment of a U.N. interlocutor to resolve the Syrian opposition’s grievances, and to ensure that Syrian citizens could protest peacefully. The Syrian government accepted the Six-Point Plan almost immediately, but continued killing protestors indiscriminately. Annan quit the Syria portfolio in August 2012 out of frustration with Damascus’ obstruction, but his stipulations for peace in Syria continue to guide the U.N. approach to the conflict. His successor, Lakhdar Brahimi, tried unsuccessfully to restart talks, but largely stuck to the priorities articulated under Annan. De Mistura took over for Brahimi in 2014, and similarly struggled to generate progress in diplomatic mediation efforts because he initially embraced the unrealistic goals of immediate ceasefire that guided his predecessors. Soon after de Mistura’s appointment, the U.N. Security Council opted to reaffirm the priorities of the six-point plan in UNSCR 2254, which continues to guide U.N. Syria policy.

As the U.N. peace talks struggled to produce results through 2014 and 2015, fragmentation within the Syrian opposition further hindered international efforts to broker a peace settlement. The Assad regime’s violent crackdown drove once-peaceful protest movements to adopt more violent tactics, and the Islamic State’s entry into Syria further required opposition strongholds to take up arms. The Free Syrian Army (FSA) served as an umbrella for opposition groups in the early days of the revolution, but splintered in 2014 as Islamist groups, including an evolving Jabhat al-Nusra, grew more assertive.

Syrian opposition figures who remained committed to the political change at the heart of the 2011 protest movement struggled to stay relevant as the Syrian conflict militarized. Political opposition voices aimed to strengthen their bargaining power by banding together at the December 2015 Riyadh Conference, which included over a hundred armed and political opposition groups. Though they failed to create a platform that was agreeable to all anti-Assad parties—Ahrar al-Sham notably pulled out—they did manage to form the High Negotiations Committee (HNC), which was united by a common call for Assad’s immediate departure. The international community continues to regard the HNC as the main representative of the political Syrian opposition despite objections to its legitimacy. Faced with the difficulties of navigating the complex landscape of fracturing opposition groups, the HNC appeared an attractive partner for international engagement despite its shortcomings. The distinction between the armed and political segments of the Syrian opposition is not a clean one, and fails to capture the complexity of parties that straddle the divide, but this distinction should emphasize the proliferation of armed outfits as the political opposition divided into factions, all of which were increasingly at odds over how best to confront the Assad regime.

In January 2017, Russia convened its own series of peace talks with Turkish and Iranian support in Astana as an alternative to the U.N.-led process, after the initially promising results of a meeting of thirty opposition groups there in May 2015. Optimists heralded Astana as a fresh start, but detractors viewed Astana as an effort by Russia and Assad to dodge the human rights stipulations contained in U.N. proposals. The talks in Astana included armed groups excluded from the Geneva talks, such as Jaish al-Islam and other FSA-affiliated armed groups, but not all opposition parties lent it their support. Notably, the HNC tentatively supported the Astana track as a bridge to progress in U.N.-led talks in Geneva, fearing that Russia would prioritize its relationship with Assad at the expense of rebel demands for his ouster and changes to the political system.

The major initial outcome of the Astana talks was the September 2017 de-escalation zones agreement, which carved Syria into four zones in which Russia, Iran and Turkey would, theoretically, jointly enforce ceasefires to allow humanitarian aid deliveries. Turkey took charge of the northernmost zone around Idlib, while Russia, aided by Iranian ground support, bore the brunt of ceasefire monitoring responsibilities in the zones located in Homs Province, Eastern Ghouta, and Deraa and Quneitara. Groups deemed overly extreme were excluded from the deal, including the Islamic State, Jabhat al-Nusra and others linked to al-Qaeda. While they were meant to reduce violence, the Assad regime and its Russian and Iranian allies leveraged the de-escalation zones to advance their own interests. The deal isolated fighting into discrete pockets, enforced by Russian air power, enabling Assad and his partners to eliminate rebel holdouts one by one by relaxing ceasefire enforcement in one zone at a time. Assad executed the sieges in Eastern Ghouta and Deraa in this way, retaking large swathes of territory in the summer of 2018. The zone around Idlib is the only remaining vestige of the de-escalation zones deal as Turkey negotiates with the armed groups there.

A secondary, less emphasized outcome of the early rounds of Astana talks was the Russian injection of constitutional matters, a fixture of the U.N. talks, to its own track of negotiations. The Russian delegation proposed a draft constitution to armed opposition groups and regime representatives in Astana in late January 2017. Russian negotiators were careful to stress that the proposed constitution was simply a draft, and that their goal in introducing it was to move the peace process forward rather than dictate the content of a new Syrian legal system.

Russia attempted to advance the Astana agenda for a final compromise between Syrian opposition demands and Assad regime priorities at a January 2018 summit in Sochi. The HNC boycotted the summit altogether, and many Turkey-backed rebels refused to leave the airport in protest of what they perceived to be heavy-handed Russian efforts to push the peace process forward, to the detriment of political opposition demands for Assad’s removal and electoral reform. At Sochi, Russian negotiators forcefully reiterated calls for a constitutional convention, energizing advocates of the constitutional process, especially U.N. representatives. De Mistura seized on the constitutional matter as a way to bring the U.N. back into in the Syrian peace process, lest Russia’s parallel talks continue to sideline the ones in Geneva. At the time, Russian Foreign Minister Sergei Lavrov highlighted the compatibility of the constitutional committee with U.N. priorities, aiming to secure for Russia the mantle of Syria’s peacemaker. Russia’s influence over Assad, including both Putin’s personal relationship with Assad and Moscow’s hefty military support for the Syrian regime, made Moscow seem an attractive partner in compelling Damascus’s compliance. Accordingly, de Mistura and his counterparts worked to demonstrate continuity between Astana and UNSCR 2254 during the Sochi summit by emphasizing the Astana track’s compatibility with the policy objectives laid out in Annan’s Six-Point Plan, especially Astana’s prioritization of the constitutional drafting effort. De Mistura needed to demonstrate Astana’s continuity with UNSCR 2254 to corral opposition members into the constitutional effort—much of the opposition was skeptical of Russia’s intentions due to Moscow’s support for the Assad regime. The U.N. stamp of approval was intended to appease Syrian political opposition figures who distrusted Moscow.

Easier Said Than Done

The plan agreed to at Sochi—in which de Mistura was heavily involved—became the basis for moving ahead on the constitutional matter. It required that the Assad government, the internationally recognized opposition (the HNC) and the U.N. to nominate fifty delegates each. By splitting the committee into three segments of fifty, rather than allowing the Assad regime and the HNC to each nominate an equal number of delegates, the U.N. aimed to avert deadlock. Reserving a pool of delegates for the U.N., dubbed the “Middle Third,” was meant to prevent either side from stacking the drafting committee and ensure representation for women and civil society groups at risk of exclusion. However, this left the U.N. plan open to challenges from opposition and regime voices questioning the U.N.’s claims of objectivity and undermining its authoritativeness as a neutral peace broker. In particular, the Assad regime took to labelling as illegitimate any involvement of a non-Syrian voice in the constitutional committee, hoping to preserve the advantages conferred by its cohesion and military progress against the fragmented opposition.

Within weeks of Sochi, Assad government representatives were raising objections the constitutional committee. Despite their close partnership, shared interests do not guarantee unconditional harmony between Moscow and Damascus. Damascus retains its own objectives, and mounting Russian losses in Syria (not to mention the financial cost of propping up Assad) increasingly incentivize Moscow to find an expedient exit from the Syrian arena. The constitutional issue is a central point of contention between the two allies because Assad continues to fear that any new document would erode his grip on power and also because he likely worries that any constitutional commitments made under Russian auspices will bring real consequences should they be violated.

Assad’s objections to the legitimacy of U.N. involvement in selecting the constitutional committee allows him to spoil plans for the convention without appearing to confront Moscow outright. The Assad government nonetheless submitted a list of delegates for de Mistura’s consideration a full month ahead of the opposition, but doing so may have allowed Damascus to project compliance more than it signaled real support for the constitutional drafting effort. For example, soon after the list was submitted, Assad forces redoubled their assaults on the remaining rebel holdouts in a bid to force an end to the military conflict on their own terms and shoring up the regime’s claims to sole legitimacy in Syrian territory.

Opposition parties are also split on their support for the constitutional committee. The HNC has a tenuous claim at best to representing Syrians who object to Bashar al-Assad’s rule. Protesters in Idlib launched a campaign called “The HNC Does Not Represent Us” in October, calling outright for its dissolution. HNC chair Nasr al-Hariri rebuked the protesters, fueling outrage against the body among rebel holdouts in Syria’s north and leading some to call the HNC an “illegal representative” of the Syrian opposition. In a bout of internal strife, the controversial HNC Vice Chairman was forced out October 15, the day before nominees for the opposition delegation to the Constitutional Committee met in Riyadh.

Resistance to HNC claims as a legitimate opposition representative hampers attempts to draw together a committee capable of drafting a lasting constitution. De Mistura’s plan to reserve fifty delegates for U.N. selection was meant to counterbalance just such objections to HNC legitimacy, but is unlikely to satisfy demands from dissatisfied rebels. Critics also point out that the constitutional committee involves lamentably few women—Sochi participants pledged that thirty percent of constitutional committee delegates would be women, but only 16 of 168 people initially offered for consideration were women.

The Future of the Constitutional Committee

Assad’s obstructionist tendencies were on full display when Syrian Foreign Minister Walid Mouallem cast the constitutional drafting effort as an attempt to interfere with the will of the Syrian people during de Mistura’s final visit to Damascus in October. The Assad regime leveraged de Mistura’s lame duck period to redouble its objections to the constitutional convention, singling out the “Middle Third” of committee delegates reserved for U.N. selection as evidence of a U.N. plot to unduly influence the constitution’s content, a charge de Mistura categorically denied. Even so, the obstructionist strategy succeeded in sinking the latest push to convene the constitutional committee; it was the delegate issue that prevented de Mistura from convening a committee before his exit as Syria Envoy. Damascus is already adopting the same bullying tactics against Geir Pedersen, threatening to obstruct his work if he negotiates with “terrorist groups,” a designation Damascus applies to most armed opposition groups. Pedersen’s arrival as Special Envoy will further postpone the constitutional effort, but its importance to both the U.N. and Russia means his team is unlikely to abandon the effort entirely.

If the constitutional issue continues to preoccupy the Syrian peace process, Assad will continue to enjoy the political stagnation he leveraged to consolidate his territorial gains last summer. As Russia forges ahead with its own track of negotiations—according to Iranian President Hassan Rouhani, the next tripartite meeting with Russia, Turkey and Iran will also take place in Russia—Pedersen will be hard pressed to ensure the U.N. retains its place at the Syrian negotiating table. He can use the constitutional committee to do so, and can count on Russia to stay committed to its convention. Yet, the U.S. exit from Syria may incentivize Russia to speed its own drawdown in Syria—marked by the recent decline in Russian military flights to Syria and the strain the Syrian deployment has placed on the Russian navy—by allowing Assad to create facts on the ground that obviate constitutional negotiations. If Assad succeeds, he stands to marginalize the last vestiges of the political opposition and preserve his own power without directly confronting Russia over the constitutional issue.

Nicholas Norberg is an AM student in Middle Eastern Studies at Harvard University. Previously, he worked at Dataminr as an analyst focused on Turkey, the MENA region, and extremism. He holds a BA in Linguistics from Georgetown University, where he studied Arabic and Turkish.

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