Transforming Gender Discriminatory Legal Frameworks: Reflecting on Transitional Justice as a Site for Combating Statelessness in Syria

Roua Al Taweel, PhD researcher at Ulster University’s Transitional Justice Institute (TJI)
/ 5 mins read

This blog was first published by the University of Melbourne's Critical Statelessness Studies Blog in January 2022. We are re-posting it now to highlight the issues raised.

Image by Katherine Hanlon via Unsplash
Image by Katherine Hanlon via Unsplash

Considering Syria as a case study, Roua Al Taweel, PhD researcher at Ulster University’s Transitional Justice Institute (TJI), examines statelessness as both a conflict-induced harm, and one facilitated by the existing gendered legal framework. She argues for transitional justice as a framework and a political opportunity to end the vicious cycle of statelessness and redress its detrimental intergenerational political and socio-economic implications.

In this blog, I reflect on the place of statelessness and gender discriminatory nationality law(s) (GDNL) within the processes of transitional justice for Syria across more than a decade of conflict the country has experienced. Transitional justice is generally introduced as 

 ‘a response to systematic or widespread violations of human rights [that] seeks recognition for the victims and promotion of possibilities for peace, reconciliation and democracy’.

This may be facilitated through judicial and non-judicial mechanisms, which include, but are not limited to, criminal prosecutions, truth-seeking, and institutional reforms.

Traditional approaches to transitional justice have been critiqued for their implication in colonial, neo-liberal and patriarchal structures of governance resulting in, among other things: limited scope in terms of consideration of forms and levels of victimisation; dismissal of gender; exclusion of women; and lacking a transformational approach. Hence, the extent to which the traditional and predominant approach to transitional justice has delivered, or is capable of delivering, ‘justice’ or ‘transition’ remains contentious. Feminist and critical approaches have called for a ‘transformative justice’ framework, understood as one that addresses structural violence, adopts a holistic approach to rights and mechanisms, ensures inclusion of affected populations, especially those who are normally marginalised, and is concerned with meaningful application and reinforcement.

The pre-conflict harm of GDNL, and consequent obstruction to equal citizenship, is a key contributing factor to continuous forced displacement and other conflict-induced harms. As such, these laws have intergenerational implications on people’s – particularly women’s – access to basic human rights and transitional justice processes. Hence, neither transition nor justice can be adequately realised in an atmosphere of unequal citizenship. While the importance of eradicating GDNL has understandably been framed, most often, as a women’s equality issue, I see value in widening this approach to assert GDNL as a form of structural intersectional harm with adverse impact on men and women across class, ethnic and religious lines.

In light of lacking birthright citizenship in many refugee hosting countries and poor levels of birth registration, GDNL marks a leading risk factor for statelessness, especially for Syrian children born in exile. This holds the potential for casting the affected population, and their grievances, out of state’s responsibility to protect. A harm in itself, forced displacement also generates multiple other harms, including destitution, discrimination in labour and housing markets, and difficulties accessing services such as education and health care. This is only accelerated by the global COVID-19 pandemic, associated lockdowns, and economic recessions. For women,

 ‘the underlying socioeconomic injustices are both a cause and effect of physical, material and psychological harms caused by lack of access to civil and political rights’.

It is, therefore, undeniable that ‘the failure to address the injustices that generated and were created by displacement calls into question the integrity of any transitional justice processes and the potential durability of peace’.

A just transition requires breaking free from structural violence and its influence on the rule of law and nation-building projects. A legal historical analysis tracks the origins of gender-based discrimination in the Syrian nationality law back to the French colonial administration, challenging the view of it as an inherent part of the Syrian ‘culture’. The law remains at odds with the constitution, which asserts women and men as equal citizens, and with a number of international frameworks including human rights as per the standards established in international customary law.

The accommodation of gender norms in Syrian laws and institutions has historically produced unjustified and unrectified gender injustices that are accelerated, and rarely addressed, at times of conflict. Responding to the indifference and exclusion of gendered concerns, alongside gender essentialism, within the discourse and initiatives for transitional justice in Syria, several Syrian feminist and women-led civil society organisations have called for addressing the structural deficiencies of Syria’s political, economic and legal system. Indeed, we need a more coherent and comprehensive recognition of injustices; one that is attentive to the link between civil and political rights (CPRs) and economic and social rights (ESRs). This is necessary in order to ‘transform the structural violence that both enables and follows from the direct violence and to address continuing inequalities and patterns of exclusion and discrimination’ against marginalised groups in general, and women in particular, in conflict-affected societies.

Transformative justice, a recent but growing field of thought, holds considerable potential as both an analytical tool (for problem diagnosis) and a responsive tool (for problem resolution). Proposing a  spatially informed concept of marginalisation, Robins et al. argue that a ‘constellation of tools - human rights, intersectionality, horizontal inequality - provides some methods to analyse links between discrimination, complex and cumulative disadvantage, socio-economic rights and structural injustice, groups and collectives, and space’. In relation to risks of statelessness, this means collecting data on GDNL and analysing its impacts to feed into decisions and tools relating to the pursuit of justice. It also means centralising women’s experiences and voices and creating reparation programmes that take into consideration vulnerability as well as victimhood.

By highlighting the socioeconomic injustices facilitated by GDNL, I seek to build on, and contribute to, growing feminist and egalitarian efforts to establish a transformative paradigm in transitional justice, and simultaneously call for its consideration as a framework to support the efforts to ending statelessness.

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