Even as more evidence emerges about his crimes, Bashar al-Assad was returned with a predictably implausible majority in the presidential elections in Syria last week. At the same time, negotiations to resolve the conflict began in Geneva with a sense of futility hanging thick in the air and expectedly ran into a dead end very quickly with the opposition representatives suspending their participation. Assad says he might consider cherry-picking some opponents for government positions but a government of national unity is out of the question. Having radically improved Assad’s position Russia has, for the moment, one leg in and one leg out of the conflict, while the US continues to gamble that its insubstantial engagement does not entirely negate its leverage.

All the while the refugee crisis fueled by the Syrian conflict continues in all its harrowing inhumanity, with scores of people drowning in the Mediterranean this week and theconditions in refugee camps in Greece deteriorating. The exodus has seriously damaged Europe’s vision of itself and continues to present the biggest political crisis it has faced in decades.

More than half of Syria’s population of 24 million has been uprooted, with four million no longer even in the country. Any lasting peace will need to address the plight of the displaced, both those who fled across international borders and those fleeing inside Syria.

It is in the immediate interest of Europe not only to stop the exodus at its source but also to begin to create the circumstances for the displaced’s eventual return. Beginning now to think about displacement and its resolution is precisely in the interests of those who seek to remove Assad from power and to see him face justice.

A few weeks ago saw the fifth anniversary of the beginning of the conflict. We heard many calls for justice. The US and the UK have chopped and changed their public views on whether Assad should stay and if so for how long. The US Congress passed a resolutioncalling for the creation of a Tribunal to try those accused of serious crimes. Other governments and human rights organizations are looking into similar options. They are looking through the wrong end of the telescope.

Only the most deluded propagandist would doubt that Assad has committed large-scale war crimes and crimes against humanity. That he and his colleagues in the Syrian High Command, among others, should face justice ought to be unquestionable. But instead of considering practical steps that make peace and justice likely, there is a tendency to descend into disingenuous posturing that fills the void of inaction.

When we talk of justice we need to remember that it consists of more than making sure Assad is held to account. It also means making Syria a place safe to live and where all its citizens enjoy the respect and protection of the state. That is – it requires root and branch reform.

Other than death, there are only two ways for Assad to go: he can decide to step down or he can be forced by negotiation or democratic process to go. The latter route requires massive numbers of opposition elements to return to Syria with a vision of a democratic future and the chance to exercise their civic voice meaningfully. That is why beginning to deal with displacement now is not only an urgent humanitarian necessity but also a strategic imperative.

The current prospects of holding Assad to account for his crimes are limited. In theory, a resolution from the UN Security Council (even today) could refer Assad to theInternational Criminal Court, a course that most assuredly would be vetoed by Russia (and perhaps by China). Similarly, an international ad hoc tribunal, as set up by the UN Security Council for the former Yugoslavia and Rwanda, would also be vetoed by Russia.

The remaining options would be for a new Syrian regime to either prosecute Assad or make a retroactive declaration (if he were to leave Syria) recognizing the jurisdiction of the ICC. The most plausible route to holding Assad accountable for war crimes and crimes against humanity will require playing the longer game of pursuing a negotiated regime change between Syrians rather than a regime change (under whatever guise) from outside.

As far as the prospects of fundamental reform and demands for justice are concerned, the focus should be on taking steps to facilitate return now, rather than on implausible calls for prosecutions that in fact may hinder the prospects of peace and return in the shorter term.

There are three important steps that should be taken now to ensure that a post-conflict Syria has a chance of a better future than many other post-conflict zones. The first is to exercise meaningful consultation with exiled and displaced populations. Efforts can begin now to discuss and document the plight of people considering return. Where did they come from? Who controls the territory now? What options do they have and which of the viable options do they prefer? Of course this will be a painful and fraught process, but if this process begins now the displaced will be able to begin to rebuild their lives sooner rather than later. That process of registration of information about land and property should also facilitate the prospects of people being able to organize and to vote sooner rather than later after their return.

An even more difficult task will to be to help those displaced to try to locate their family members, many of whom will have been disappeared or killed. No one should underestimate how unbearably painful the process of locating lost loved ones can be. An important step will be to assist these efforts by establishing a DNA databank to help facilitate identifications in due course, as human remains are discovered and family members are able to lay to rest their loved ones with some dignity and closure.

Third, more can be made of the massive amounts of documentation that has been gathered in recent years from Syrian conflict zones rather than simply waiting for a tribunal or other mechanism to be established. That documentation should be synthesized and analyzed. It may even be possible to hold public hearings (in safe locations obviously) where victims are able to tell their stories directly, unmediated by journalists or other forms of reporting. This is not justice, but it has some real benefits. It would allow victims to have a sense of agency in influencing the broader context in which negotiations take place, trying to ensure that compromises for peace are informed by an element of principle.

Assad depends on a number of things for his continued survival: some form of Russian support, a continued conflict with Daesh and a lack of massive well-organized opposition focused on democracy. Facilitating the return of half the population to their homes is the shortest route to undermining his stability and of ultimately provoking a shift in Russian support.

As unpalatable as it may sound, political posturing which reduces the discussion of justice to Assad being removed or tried today is not helpful. A stable ceasefire is the only possible means of helping displaced Syrians return home. That process will be an enormous undertaking. Yet it is much more likely to determine the fate of Syria (and perhaps Europe) in the next five to twenty years than any other.

In December 2015, the UN Security Council passedResolution 2254 with the goal of creating a roadmap to facilitate a political transition in Syria. In the recent round of peace talks, the UN Special Envoy for Syria Staffan de Mistura prioritized elections and a new Syrian constitution as key steps to implement the Resolution. The United States and Russia echoed these sentiments and declared August 2016 as the deadline for drafting the constitution. Reportsclaim that the Russian government submitted an initial draft which the United States is currently reviewing. By engineering the constitutional process without input from Syrians, the United States, Russia, and the United Nations are setting the stage for a rushed, non-transparent, and poorly conceived constitutional process, which, most importantly, does not provide adequate time or space to respond to the demands of Syrians.

According to international best practices and lessons learned from other post-conflict countries, the constitutional process has the potential to be an important part of peacebuilding. Although constitutions historically were created by the political elite without public input, modern practice has shown that an inclusive process with public participation leads to final products with greater legitimacy and local buy-in — two elements critical to promoting future stability. In 2003, the United States Institute of Peace (USIP) released a report on constitution-making that emphasizes the importance of “genuine political participation” defined as a process which allows for social inclusion, personal security, and freedom of speech and assembly. According to this model, the drafting process is often long and requires significant resources to achieve success. The report further emphasizes that democratic constitutions cannot be written by external actors on a nation’s behalf because it will not address the grievances of the population and is unlikely to secure local buy-in.

Tunisia and Rwanda are both countries that followed a participatory model for constitution drafting. Although Tunisia’s process did not emerge from a bloody civil war as is the case with Syria, Tunisia offers an example of the importance of participation that is markedly different from the transitional processes in other Arab countries. Tunisia’s new constitution was initially framed with the goal of reaching consensus and safeguarding against authoritarian rule. It was a slow process that involved negotiations and voting from a wide spectrum of political parties. A diverse group of popularly elected Parliamentary members voted on each article separately. While it took almost three years to complete, the Tunisian constitution’s long, iterative processensured greater buy-in from Tunisian society, giving the document real legitimacy.

Like Syria, Rwanda experienced a brutal civil war but was still able to form a new constitution with genuine political participation. Following the war, Rwandan officials werecommitted to the principles of participation throughout the transition, and both the government and the international community dedicated significant resources — almost $7 million — to make participation possible. Well before the drafting of the document even started there was local outreach and education on the constitutional process. Participation culminated in over 90% of the Rwandan electorate voting in the final referendum, with 93% of those who voted approving the draft. Thanks to this inclusive process, the new document was seen by Rwandans as a legitimate break from the violence of the past and helped establish a new framework for governance in their post-conflict society.

While peace processes and constitution drafting often go hand-in-hand, according to Habib Nassar, a constitutional expert and member of SJAC’s Advisory Board, the result of peace negotiations typically feeds into the constitution drafting process, not the other way around. Instead in Syria, constitution drafting seems to be guiding and proceeding alongside the talks. This is not only unusual, but threatens Syria’s peacebuilding process. Rather, the negotiators as well as the international backers of the talks could work on a temporary constitution or transitional document and leave the drafting of a permanent constitution for a time when an inclusive process is possible. Rwandans, for example, usedmultiple documents to guide their transition until the country adopted a new constitution in 2003. These documents included the 1991 Rwandan constitution, protocols from the 1999 Arusha Peace Accord, and additional protocols introduced by the transitional government.

The proposed US-Russian approach does not adhere to best practices, and neither the UN Special Envoy nor his advisors are pushing back. The frustration among Syrians is that there has yet to be an explanation of the reasoning behind the current process. Lessons-learned from countries like Tunisia and Rwanda demonstrate that there is no need to rush constitution drafting. Temporary documents can serve as placeholders while a genuine, inclusive process takes place. While having a well-written constitution is important for good governance, the process itself can be even more important for peacebuilding and establishing the rule of law than the final product. And since the roots of the current conflict in Syria stem from serious governance problems, adequately addressing the conflict requires addressing those grievances, not repeating the same closed-door, uninclusive modes of decision-making that define Syria’s past.

For more information and to provide feedback, please contact SJAC at info@syriaaccountability.org.