The Terrorism Of Courts In Syria
(The Court of Terror, Military Field Courts, Courts and Islamic Legitimate Bodies)
Syrian Center For legal Studies and researches
Layer Anwar Al Bunni
Firstly: The Court Of Terror
The court of terror – which is formed by the decree No: 22 of year 2012 – was founded on the ruins of “The High State Security Court”; which was formed by the decree No:47 of year 1968, as a special court instead of the special military court.
The military council – which captured the authority on Mars 1963 – formed the special military court by the decree No: 6 of year 1966.
The State Security Court was concealed by the decree No:53 of year 2012, and the state of emergency – the legal base of this court – was eliminated by the decree No:171 of year 2012, and counter – terrorism law was enacted by the decree No:19 of year 2012, as at the “counter- revolution goals” law that was enacted by the decree No:6 of year 1964. All these laws were issued to protect the authority and to face its oppositions.
As “High State security court” dealt with the crimes that are mentioned in the law of “counter- revolution of 8Mars 1963 goals” and “obstructing applying the socialistic legislations” which was enacted be the decree No:6 of year 1964, in addition to the crimes that occur anti the foreign security of the state; the law determined the specialty of the “court of terror” with the crimes of terrorism and all crimes are referred by the public prosecution.
We find so similarity between on a hand, laws of “counter – terrorism” and “court of terror”, and on another hand, “High State Security Court” and the law of “counter- revolution goals”. Whereby the laws of “counter- revolution goals” and “High State security Court” were enacted in a critical period of the Coup’s authority to empower and root its domination and power and to repress the oppositions.
The law of “counter- terrorism” and the law of “the court of terror” were issued in similar conditions, that the Syrian power, is facing – till now – labors to destabilize its hegemony and threaten its absolute control on the community and state in Syria. The both of the laws did not enacted in order to protect the state, because in the context of the events, the threatening was against the authority not the state.
The “state security court” and the law of “counter- the revolution’s goals, and obstructing the socialism legislations” were issued amidst nationalistic and socialistic emotional enthusiasm in Syria and surrounding and the attempt to catch the empathy of the socialistic and Arabic states to cover contravening the human rights.
The same case happened with the law of “counter –terrorism” and “the court of terror”. Whereby they were issued amidst international enthusiasm of counter-terrorism, in order to insure the international supporting to Syrian authority and including it into counter- terrorism efforts; regardless the great contravening the human rights, again.
The authority tried to pass the critiques anti the previous “state security court” as a special court, so it tried to include it into the Syrian justice system morphologically, but with keeping the exclusive “element” in its essential formation. It kept its centric forming and limiting it in Damascus, and kept the authority of the presidency to nominate the judges in the court, which contravenes the law of the justice authority that gives the “high justice board” the authority of naming the judges and their transportations over the courts. According to the article 2 paragraph 1 of the law of forming them ” the court consists of three judges, each one of them has a position of a chief consultant, and two members, one of them is a military person, and they are named by a decree, with a suggestion of the high justice board”.
In the paragraph B of the article 2 “the investigating judge is named by a decree after the suggestion of the high justice board”.
The paragraph C of the article 2 “the public right in this court is represented by a special prosecution, which its chief and members are named by a decree after the suggestion from the high justice board”.
After concealing the state of emergency, the position of the martial law administrator -his task was ratifying the sentences – high state security court issues were concealed. And a special chamber of the court of terror is founded, whereby the president (the martial law administrator with new clothes) has the right to form it by a decree. That also passes the authorities of high justice board according the article No:5 ” the enacted sentences by the court are appealed in front of a special chamber, which is formed by a decree in the court of appeal”
Because the decrees are enacted by the president only, naming all the court’s judges, its prosecution and the court of appeal is under his authority only, and he is alone responsible of their actions.
As at the law of “state security court” eliminated the chamber of referring as a resource of decisions of the investigating judge, the law of “court of terror” eliminated the chamber of referring. Whereby the paragraph B Article No:2 includes: “the investigating judge is given the authorities of the referring judge that the regulation in force include, in addition to his authorities”.
The Syrian power doesn’t stop at these exclusives but it added: freeing the court from committing with the procedures and the rules, whereby the article No:7 “with keeping the right of defense, the court isn’t be restricted by the rules that are mentioned in the regulations in force, in all the stages and procedures of the judgment and prosecution”. In this case it is similar with the field military court.
It also adds a new exclusive, by preventing the accused who is judged in absentia from the right of appealing the default judgment when heshe is arrested according the text of the public law. It considers the sentencing that is issued in absentia as a final judgment can’t be overturned, unless the accused one arrest himherself to the court voluntarily. The article No:6 “the default sentences that are issued by the court do not re- judging in the case of arresting the judged person, unless he arrests himself”
As at the law of “counter- the revolution’s goals”, the law of counter- terrorism was issued with unclear and baggy expressions, that they can be interpreted by different ways, and it adds three new crimes that haven’t been mentioned in any previous law, breaching the principles of the justice. They are related to use social media, according to the article No:8 “everyone who distributes or stored information – whatever their shape was – to promote terroristic means or terroristic acts, is penalized by the temporary hard work. The same penalty is applied to each one uses or manages a website for that aim”
It adds in the article No:10 “every Syrian or foreign who settles in Syria, knew one of the crimes which are mentioned in this law and didn’t inform the authority, is penalized by imprisoning from one year to three years”
Also, it added a crime of intentions and the crime of “thinking to do a matter without existing any material acts approving that”. The article No:2 “any conspiracy aims to act any crime of the mentioned crimes in this law, its penalty is temporary hard work”
This law doesn’t distinguish between the adult and juvenile, or between the civilian and the military including the all, and there are accused children under age sixteen in the court of terror.
Ten thousands of people have been judged in this court, which their accusations were ranging from using the weapons and doing terroristic actions to use the social media to express their opinions, practicing peaceful activities as demonstrations and relief the refugees and the people under the siege, and providing a medical help for injured and afflicted ones by their houses and livelihood.
There are accused people by carrying bread to the sieged areas. Women are accused by cooking food for their sons of the fighters. There are women and children which their ages are many months only, because of one of their family’s affiliating to an armed group. In addition to hundreds of doctors and pharmacists which are accused by offering emergencies and drugs for the injuries. There are thousands of the peaceful activists, journalists, lawyers and activists over websites, because of documenting the contravening regime.
Secondly: the field military courts
The field military courts were formed by the decree No: 109 of year 1968. They dealt with the crimes that are included in the specialties of the military courts and that are acted in the time of war or the war operations, that the defense minister decides to refer them to this court according to the second issue of the constitution.
The court consists of a chief and two members by a decision of the defense minister, and the rank of the chief mustn’t be less than Major, and the rank of both of the members mustn’t be less than captain. It is forbidden to judge any officer in any court that its chief has less rank than him in according to the article No:3.
The decisions of the public prosecution are peremptory and don’t accept any appellate way in according to the paragraph No: 4 of the fourth article.
According to article No: 5 it is available that the court doesn’t obligate the rules and procedures that are mentioned in the executive legislations.
The article No:6 “the court applies the penalties that are ratified by the law, and doesn’t accept any appellant way.
In 1980, and because of the movement of the Islam brotherhood, the authority added a matter of the internal disorders to the specialty of the court by the decree No: 109 date: 17 8 1968: (or when internal disorders happen)
In spite of both of the high state security court and the field military courts, haven’t treated more than some thousands of issues for the all length of their existence for 40 years; the court of terror have judged ten thousands of the issues for the three years of its existence.
The field military courts treat more than 25,000 files, that more than 40,000 accused are judged, a half of them are attained and another half are escapers or prosecuted.
The accusations are ranged between betrayal, deserting, spying, communication with enemy and other crimes that related to the foreign and internal security of the state in addition to the law of the military penalty.
The work of both of “the court of terror” and “the field military courts” has developed through the previous years. In 2012 there were just two investigating judges, which 3602 files from Damascus, including 1427 issues of arrested detainees and 2175 issues of escaper accused persons; were referred from the public prosecution. Most of those issues were about political opposed ones who a part of them has escaped out of Syria.
6062 issues have been referred to the investigating judge from the other Syrian provinces. Then the numbers increased a lot through both of 2014 and 2015, to reach the total number of the issues that the investigating judges have treated till 37756 issues. That led to hire three new investigating judges in 2013, so the total number became 5 ones.
In the second half of this year, two judges were added and the total number of the investigating judges became 7. From July the number of the judges was increased to ten, because the heightening of the issues.
4730 issues have been referred from the investigating judges to the criminal court. 617 final sentences have been enacted, whereby they ranged between imprisonment for 3 years and the execution, and the other issues still waiting. The follow schedule shows the numbers of the issues in the court:
chamber court 2012 2013 2014 Till May 2015 Total
The number of the issues that are registered in the office system of the public prosecution from Damascus and the accused is exist. 1427 7719 11168 3789 24121
The number of the issues that are referred to the public prosecution in the court of terror from the other public prosecutions in the Syrian provinces. The accused is exist without transporting its imprisonment place to Damascus 6062 17676 5785 1011 30534
The number of the issues that are referred to the criminal; court in the court of terror —- 709 1582 2744 5035
The number of the issues that the court of terror sentences about them —– 108 313 257 678
Whereby each issue can be accusing of one or more persons, and sometimes the accusation file includes tens of persons, so it is not possible to determine the number of detainees for the court of terror or the number of whose issues were submitted to it exactly. Because of the difficulty to reach to the documents of the court, but the estimated numbers of the detainees since the beginning of the protests on 2011 passed 300, 000 by our following the work of it and from the detainees information. Half of them, their files have been submitted to the court of terror or the military court or the field military courts, and all of them are exclusives. In addition to 100,000 ones of them are escaping and wanted for arresting.
The number of the accused persons whose files have been submitted in front of the court of terror passes 100,000. There are more than 50,000 ones of them have been accused in absentia, and the others have been detained in Adra’ prison or Sydnaya military prison or the other prisons in the Syrian provinces: Homs, Hama, Latakia, Sweida, Tartous and Aleppo. And 20, 000 ones have been released by the investigating judges for not approving the accusations, by appeasements, exchanging or because of the issued amnesty creeds.
In addition to more than 20,000 arrested ones, the field military courts judge them, and 150,000 ones that they still absent and disappeared people forcibly in the different security departments, and the unofficial arresting centers without submitting them to the courts.
The death cases in the custodies because of the torturing and the non-humanity conditions they suffer, and because of absence of all the types of the medical care. In addition to death from hungriness, we can estimate the number of who have been died in the custodies more than 50.000 because of these conditions.
The side of accusing The total number of the accused ones in front of the court The total number of the detainees since 2011 The number of the detainees that are released The number of the detainees that still under detention till now
The court of terror 100,000 50.000 20,000 30,000
Field military court 40,000 20,000 —- 20,000
total 140,000 70,000 20,000 50,000
Thirdly: the courts and the Islamic legitimate bodies
The term of “legitimate courts” has appeared in the terrains that are taken off from Syrian authority. They could develop and approve themselves instead of the court people used to know of the state’s institutions.
But that haven’t happened because some mistakes and obstructions, the responsible ones have made. That led to weaken the role of these courts and deteriorate the achievement. We can define these reasons in these fields:
1. The difference and contrast between the criminal legitimate resources that these courts have adopted. At beginning, the criminal Syrian law was adopted, but after proliferating the courts and diversity of affiliating to various armed groups, the legitimate resources lost, and each group’s court adopted different principles, in spite of they– in general – say that these principles depend on the criminal resources of the Islamic legitimacy.
There is no written accurate united and organized criminal Islamic law, neither for the criminal law nor for the rule’s judgments, therefore applying the roles of the Islamic legitimacy was arbitrary without any regulating or monitory, and it is ruled by mood and comprehension of who applies it. Mostly, religious men, legitimacy (Sharia’) students or fighters were who apply it. Some of them aren’t learned, and there is no legal background of the learners. So the courts became like tribal or community rule councils, where no applied roles, and sentence with what they think.
2. The affiliating of a lot of courts to the military portions, leads to lose the necessary independence for the justice. The prevalent type, the courts were formed by it was:
The leaders of the portions form them by choosing an efficient one for the justice and dedicating a necessary pro –portion power in order to apply the enacted decisions from this court, instead of what called “judicial police” or ” judiciary police”.
Some courts are less subordination to portions, whereby they were founded independently then portions assigned to obligate their decisions and supply them with the necessary power to execute their decisions, but they still losing the ordered independency for the justice, what leads to effect on some sentences according to the supporter portions’ attitudes.
3. Weakness of the executive power of the courts. There is no doubts that the right needs a suitable power to apply it, otherwise it will stay speech without applying. Because the courts have been founded in unprofessional conditions of non- organizing the affairs of the state and non- its seizing upon all its terrains, they still losing the necessary power to apply a lot of decisions, especially what are related to some armed members or some portions’ leaders. What makes a lot of their sentences applying only on the weak people and the individuals without the groups.
4. The weak experience and non- efficiency of the worker in the justice: As a result of the Syrian revolution, a big number of judges have supported the regime, and another part defected from it, but they escaped out of the country, and didn’t work in the current courts. Because of fearing from death, non- conviction in success of the court’s work, or feeling exempting from some worker in these courts. Whereas students of legitimate science – who most of them have not practiced the judging before, and some of them haven’t been graduated yet – work in these courts and preside on them. But some courts developed their performance later, by helping from lawyers and using them in applying the legal procedures in the justice.
5. Proliferating the courts and varying them without benefit: some courts have been founded to compete other courts, because absence of control laws can prevent this diversity without necessity. This diversity is unhealthy phenomena, whereby they work usually without coordination together, and without limiting by the place specialization of each other. Some sentences and issues have been interrupted by submitting them in two courts at the same time.
Each portion has founded an own court, Free Syrian Army’s groups have founded their own courts, adopting lawyers and judges. Whereas the Islamic groups have founded Islamic legitimate courts depending on local leaders, religious men and on lawyers simply. Both of JN (Jabhet al Nusra – al-Qaida apartment in Syria) and ISIS have founded own Islamic legitimate bodies depending on chief fighting and religious men. Kurdish troops PYD have founded own courts depending on lawyers and fighter directions.
In Aleppo (northe of Syria), the Islamic legitimate body was announced in 15/12/2012 by agreement between the biggest brigades in Aleppo: “Tawhid brigade”, “Ahrar al Sham” JN and “Sokor al Sham”, then most of the portions and brigades affiliated to it, as: “Fatih”, the collection of “Istaqem Kama O’mert”, “Ahrar Syria brigade” ” Naser Bridge”, and ISIS, to be the first judicial body in Aleppo.
The Islamic legitimate body consists of president office, which many offices emerge from it, as education office, Ifta’ office, mosques affairs, service office, medical office, judicial office and mills & grains office, and each one of them has special tasks.
The body preside upon two custodies where the judged ones are transformed to them. But JN has defected from this body to form an own Islamic legitimate body, then ISIS has done the same. As a result, the residents in the “freed” neighborhoods in Aleppo, live under the mercy of chaos of interposed decisions from the different resources.
The Islamic legitimate courts started to enact extreme religious and strange decisions from the Aleppo community, which used to commit the Islamic procedures in a moderate way, far from the extremism and fanaticism. It is notable that there is heightened leading role of the extreme Islamic groups, whereby the hegemony of many Islamic groups increases depending on own police services and own administrative councils .
Except the free Syrian army’s courts – which were the weakest and the lest – founding all those courts was for the same aim of regime: repressing the opposition of the court owner, and posing own ideas upon the all.
The Islamic legitimate bodies and courts have arrested as around 5000 ones since their founding. They have executed more than 200 arrested ones. The conditions and centers of the detention are diversity according to the bodies, sponsors, places and the detainees. In general the conditions of custodies don’t respect the minimum limit of detainees basic rights.
The law and courts have been founded not as a tool to achieve the justice in the society in Syria, but to oppress the society and terrorize it, and to shut up every opposite voice. The existence of exclusive courts and laws, changing the laws of judicial authority, controlling the high judgment council, and forming the exclusive courts since Ba’ath seizing upon the authority, which weren’t exist before, and they developed later to cover all the crimes that happened against the right of Syrian people. The opposition that has seized upon Syrian terrains used the same mechanism of the regime, through courts, judgment and unclear laws, which everyone can interpret them by his mood, in order to support his rule, using the justice with mutilated shapes to pose strange ideas from the Syrian people.
That happened because the opposition troops’ late to make any serious step to root real justice institutions on the ground, and because of absence of a real support to this step from the international community, and because of non-existing any effective power in the reality can protect this step. Especially, such “powers” are the goal of each other forces of regime and oppositions to weaken them. All these reasons fail each step in this field.
In fact as it is said (the justice is the foundation of ruling), it is not possible to build any political authority in Syria at future before building real justice institutions, adopting the principles of the human rights in their job as: independency, neutralism and integrity. And it is impossible to build like that authority before achieving real justice toward criminals, violators upon the human rights and users the judgment and justice to perform their own aims in Syria.