May 7, 2013 3 min read Articles

Who’s to judge: The future of Syria’s judiciary

Millions of Syrians look forward to the day that violence gives way to peace. What that peace will look like, though, is impossible to say. But if anything is certain, it’s that the country’s future judges— and their actions—will reveal a lot about the nature of peace and accountability in Syria. How much power will they have, and what kind of justice will they defend?

Despite the turmoil of the ongoing conflict,judicial activities abound in one form or another. But, like the country itself, legal proceedings are splintered and vary widely in form and content. Much of the discussion about the ad hoc courts established in rebel-held areas since the start of the conflict has centered on the role of Sharia law. But more relevant questions, as far as indications of justice and freedom are concerned, should address judicial independence and transparency. Critical to the effective functioning of Syria’s judiciary will be the judges themselves and the institutional context in which they find themselves.

Any new judicial system won’t be established in a vacuum. The Syrian government employs thousands upon thousands of judges across the country—what will happen to them? Certainly, a lot depends on how the conflict ends, but the main question revolves around whether these judges, most of whom are lower-level members of the civil bureaucracy, will be excluded from or reintegrated into a post-conflict justice system. Reintegration might be easier for judges who have spoken out against violations, especially if they are seen as having credible records against political detention and extrajudicial killings. Some judges have defected, too, including the higher profile Attorneys- General of Aleppo and Hama. Many Syrians recognize the difference between higher level officials with close regime ties and the (essentially compulsory) membership in the Baath party required of all civil servants. Most, especially local, judges fall into the latter category. Their ability to contribute to a reformed justice system deserves serious discussion by Syrians.

The effectiveness of judges also depends upon their institutional context. In this respect, the independence of the judiciary system will be of paramount importance. The judiciary cannot serve merely as the rubber stamp to the executive. One litmus test will be particularly informative: are courts empowered to hold soldiers and police accountable? If public officials remain above the law, it’s hard to imagine that citizens will enjoy legal protections when it matters most. To that end, the judiciary would benefit from strong support from the legislature, and funding that is not dependent upon the head of state.

Credibility is also a vital, if somewhat intangible, asset for judges. Transparency in Syria’s courts can help. The current system is composed of several different courts, with many operating in shadowy exceptions of general judicial procedures. The Court of Cassation, for instance, publishes only summaries, not transcripts, of its cases, making it difficult for Syrians to effectively win appeals. The Supreme State Security Court and the Economic Security Court, which were dissolved only recently, were exempt from providing the typical safeguards of defendants’ rights. Courts would also enjoy additional credibility insofar as they are responsive to local needs. The beneficial practice of placing some jurisdictional authority in the hands of local courts is a useful model.

As mediators, courts serve as a vital interface between people and their government on a daily basis. In practice, courts exercise authority during vital moments of contention and they can help ensure that the fine line of justice is upheld. As such, judges will be uniquely positioned to establish the rule of law—the backbone for any transitional justice process. They will be key to resolving property destruction cases, reparations, and even matters of truth-seeking. The engagement of judges can powerfully support civil society in a volatile period and transitional justice efforts should recognize their indispensable role as crucial stakeholders. Syria’s judges have the opportunity to distance themselves from the opaque and politicized judicial system of the past and win the confidence of their nation.

Signup to receive the SJAC’s Weekly Updates here.