Ad hoc courts: More transition than justice

With governmental authority expelled from rebel-controlled areas, gone also are the benefits of even a dysfunctional bureaucratic civil service. When it comes to legal authority, Syrian groups have stepped up to fill the void by setting up ad hoc courts to settle everything from commonplace certification of documents to detaining and punishing prisoners. While some of these courts fulfill important needs, others do real harm. In all cases, they highlight the need for something better.

Most ad hoc courts are run by rebel groups, set up to serve as adjudicators in areas under their control. Serving a wide-range of needs, the courts sign marriage documents, arbitrate disputes, and judge more serious crimes like theft. One court in in Kafer Sajenah, for example, has set prices for fuel and food, settled divorces, and mediated land disputes. Most of the courts are located in Aleppo and Idlib where rebel groups have asserted significant control.

Ad hoc courts vary considerably by area, even within the same city.Some are run by lawyers, human rights activists, and anti-regime dissidents. However, the most organized and influential courts are typically those based, to some degree, on broad principles of Islamic law. This stems in part from the Islamic philosophy important to many rebel groups, but also reflects shared community values in many areas. Some courts blend religious tenets with the mundane details of civil law, employing lawyers, religious leaders, and rebel leaders in positions of authority.

But real concerns have been raised about the ad hoc courts.Paramount among them is the worry that ‘might makes right’ in this time of legal indeterminacy. Since most of the courts are backed by the opposition groups in power, their authority often rests upon implicit strength of force. The best example of such heavy-handed power is the Aleppo-based shariah court known as “al-Hayaa al-Shariya,” or “The Legal Commission.” The court is supported by the four hardline Islamic rebel groups of Jabhat Al-Nusra, Ahrar al-Sham, Fijr al-Islam, and Liwa Tawhid. Despite its efficiency and influence, al-Hayaa al-Shariya’s variety of justice is not endorsed by all Syrians. The court has carried out sentences of whipping and detained Syrians for weeks on end. The ad hoc courts don’t so much represent a workable solution, as a temporary, often highly-politicized, expedient. As such, Al-Hayya al-Shariya, and indeed all ad hoc courts, should be held accountable for any injustices and abuses committed or sanctioned on their behalf.

Fragmentation is another major obstacle to justice in Syria. In Aleppo, for instance, despite the influence of Al-Hayya al-Shariya, it is only one court among many. Even Islamic courts that try to follow religious tenets may employ different interpretations in deciding on the more mundane aspects of everyday legal necessities. The fragmented nature of the opposition also makes standardization of the law, even across the same city, nearly impossible. Insofar as courts bend to the wills of their rebel backers, political maneuvering can trump impartiality. These dilemmas pose added difficulties for citizens trying to form some sort of legal expectations.

In an attempt to improve the legal environment of their city, 50 former lawyers and judges have set up the United Legal Council of Aleppo. Offering up their considerable legal expertise, the Council is seeking to establish a unified justice system for the city. The council says they have won needed backing by some rebel groups, but not all. The considerable influence of the opposition forces means that the United Legal council’s decisions lack teeth when they run up against the interests of rebel groups.  The efforts of the United Legal Council are praiseworthy, but the hurdles they face demonstrate the precarious condition of justice and accountability in Syria today.

Increased legal capacity, especially when the violence draws down, will be a critical component to a smoother transition in Syria. Syrian lawyers, human rights experts, and respected local leaders will come to play increasingly prominent roles in securing accountability, and the participation of Syrian citizens will be vital in truth-finding commissions and processes of national healing. But even before the conflict is formally resolved, the opposition and its leaders should attempt to establish a unified and transparent justice system that adheres to high standards, serves the people, and protects the innocent. Insofar as it demonstrates their attention to accountability and the needs of citizens, this would be a welcome move by the opposition.

Syria’s process of national healing and reconciliation will be unique to itself, and while such undertakings must be Syrian-owned and driven, that does not preclude the international community from contributing where beneficial. History is rich with lessons from South Africa, Yugoslavia, Nepal and elsewhere, and lawyers and human rights workers with experience in post-conflict tribunals in other parts of the world can offer valuable advice based on their own experiences.

The ultimate effort required of Syrians is not just a filling of the void by disparate rebel groups, but a shared undertaking involving all Syrians. In the meantime, ad hoc courts may provide some of the accountability that Syrians need, but not the justice they deserve.

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