Lawyers, Guns, and Mujahideen

In August 2014, residents of al-Sheikh Issa, a small town in northern Aleppo near the border with Turkey, discovered a man’s body in a drainage ditch. It was not an entirely unusual event: Lawlessness and violence have racked communities in rebel-held Syria since insurgents expelled Syrian President Bashar al-Assad’s regime from large swaths of the countryside. Early in the conflict, it was not uncommon for families to bury murder victims without ever knowing what happened, because there were no courts and no police to carry out investigations.

By the time the body in al-Sheikh Issa was discovered over three years into the uprising, that situation had changed. The residents who discovered the body immediately called on rebel police stationed in nearby Marea, who reported to the scene with the local opposition court’s medical examiner. The examiner discovered a bullet hole in the man’s head, so the court opened a murder investigation, keen on capturing the culprit.

In Syria’s rebel-controlled areas, a nascent legal system has emerged to solve crimes and settle disputes between citizens. This court system has grown increasingly sophisticated — particularly in the north, which has become a stronghold for rebels not aligned with the Islamic State. However, the courts remain divided, despite the emergence of a consensus around the implementation of their rulings. Their various approaches to justice reflect an evolving debate within the opposition over the religious identity of Syrian society and the type of laws that should govern it, both during the war and into the future.

Syria’s rebel judiciary began small. While the fight to expel the Syrian regime from the northern countryside was still raging early in the uprising, so-called "customary" dispute resolution mechanisms — actually a mix of long-standing practices and a reaction to the corrupt regime judiciary — grew into local dispute resolution committees. In time, the committees began to self-identify as "sharia courts," a name they felt carried moral weight, as Islamism began to dominate the armed opposition.

"They worked without a written law," said an employee of the sharia court in Kafranbel. "Instead, each member of the commission relied on his knowledge of law, custom, and religion.… They did not have the ability at first to enforce their rulings, but they had a sort of informal, moral authority, and so their word was respected."

By late 2012 and early 2013, armed groups began to assume greater control of these nascent dispute resolution mechanisms. These brigades gained further influence by lending security battalions to enforce court decisions — now, the sharia courts not only had moral authority, but they potentially had the guns to back up their rulings.

As the armed groups’ influence on the new legal system grew, independent judicial bodies became unsustainable. The most prominent example was that of the Unified Judicial Council (UJC), a body staffed mostly by trained lawyers who asserted their independence from the rebel battalions. The council was most active in Aleppo, but also maintained a presence in the northern province of Idlib. Predictably, the organization collapsed in February 2014 in the face of a forceful takeover by another more extremist court network controlled by the most prominent fighting factions in the province.

However, the influx of lawyers to other courts in Aleppo and Idlib after the UJC’s collapse reinforced a measure of independence among some judicial bodies. Independent-minded lawyers and religious figures found work where somewhat more moderate armed groups were strong. "We believe that no one should be above the law and that no one should interfere with the work of the court," said Usama Shannaq, a religious figure who heads a rebel court network centered in Darat Izza, a northern town in Aleppo province. The institution is backed in part by Harakat Hazm, a rebel group receiving Western military support.

"Sometimes the armed groups pressure us, but it is rare," Shannaq said. "If I’m honest, I’d say we are about 90 percent on being able to work without interference."

As the courts grew more organized, the question of what law to apply emerged as one of the thorniest issues within the fractious Syrian opposition. On one side of the debate were courts that promoted the use of the Unified Arab Code (UAC), a set of legal codes endorsed by the Arab League between 1988 and 1996 but never applied anywhere until the Syrian uprising. "We decided on the UAC because it is codified [and] was developed by both legal experts and sharia experts," explained Mazin Jumaa, the head of the civilian wing of Harakat Nur al-Din al-Zinki, an armed group that has received Western support, "and because our popular base is keen on applying the rulings of the Islamic sharia."

The UAC, which the Arab League appears to have endorsed more as a nod at Arab and Islamic unity than as part of an effort to create an applicable set of laws, is based on a relatively strict interpretation of Islamic law. The criminal code, for example, contains stipulations for implementing the hudud — harsh punishments such as hand amputation and stoning.

Employees of Syria’s opposition courts, however, insist that the harshest punishments in the UAC are never implemented. "Because it is wartime and because of the fighting, it is impossible to implement the hudud," explained Shannaq. "We don’t have the authority to implement those types of punishments because we are an emergency judiciary and applying the hudud requires a state and a president."

The UAC includes criminal, civil, and personal status codes as well as books of civil and criminal procedures. In an attempt to capture the spirit of classical Islamic jurisprudence, the codes give judges broad discretion in choosing punishments and penalties to suit the circumstances of a case, within specified minimum and maximum bounds. According to Shannaq, the value of the codes is that they are "organized, usable, that they have aspects of a codified law but are still based on sharia, and that they are distinct from pre-revolutionary law."

The latter sentiment was frequently mentioned by rebel court employees and police interviewed for this article. "Bashar’s law" has become an epithet for Syria’s prewar civil code, still in force in much of regime-held Syria. Court employees, many of whom are lawyers trained in the Syrian civil code, say that they cannot apply it openly — even though many consider it a superior option.

This conflict has added another layer of disagreement between revolutionary forces inside Syria and the external opposition. Anwar Majanni, one of a small number of judges to have defected from the regime and a representative of the opposition interim government’s Ministry of Justice, is opposed to the application of anything but Syria’s prewar civil code. Majanni branded the opposition courts as unprofessional bodies that use "Islamic law" as cover for the arbitrary rule of the armed groups that back them.

"We cannot build on incorrect and illegitimate foundations. We have to lay the foundation correctly first before we build on it, and these courts are not something we can build on," said Majanni.

Opposition court employees interviewed for this article viewed the interim government’s approach as impractical. "We asked the [defected] judges to come and work with us, but they refused to do anything and stayed in Turkey," said Jumaa, "and so we were left to make something work."

The UAC fulfilled that pragmatic need, successfully satisfying a wide swath of opposition figures with divergent views on how best to administer liberated territories. It satisfied trained legal professionals accustomed to applying a fixed code, while its strong Islamic credentials satisfied local religious figures and some armed groups who preferred a stricter interpretation of Islamic law.

Another factor was also a key enabler: The UAC is readily available online, and many court employees simply downloaded it and printed it out, said Muhammad Khalil, the prosecutor general of the Marea court.

The UAC, however, not only has its detractors among the exiled Syrian opposition — more extreme Islamist brigades also oppose it. Salafi-inspired opposition courts and the armed groups that back them have opted instead for an uncodified interpretation of Islamic law. The most prominent such judicial body is the Aleppo Sharia Court — formerly known as the Aleppo Sharia Commission — a network of courts established by groups that eventually formed the Islamic Front, the largest single rebel coalition in the country. The al Qaeda-affiliated al-Nusra Front also helped found the body, but withdrew on July 8, just before establishing its own judiciary the following month. The Aleppo Sharia Court was chiefly responsible for dismantling the UJC and dominates the city of Aleppo and its northern and southern countryside.

In courts that rely on an uncodified version of Islamic law, such as the Aleppo Sharia court, clerics typically rely on their knowledge of Islamic jurisprudence to settle disputes and hand down punishments. "There is an Islamic jurisprudential debate over the permissibility of codifying Islamic law," explained Ibrahim Najjar, a lawyer and legal advisor with the Islamic Front’s police force. "One side opposes codification because it is seen as distorting Islamic rulings."

Yet, practicality may come to trump ideology among the more conservative bodies and armed groups that back them. "The UAC is up for discussion right now," explained Muhammad Qabaqibji, the public prosecutor of the Aleppo Sharia Court. A council of legal experts and Islamic law specialists are studying the UAC, he said, and whether it conforms with their understanding of sharia. Islamist brigades may also be coming around. "According to the Islamic Front, there is no problem with the UAC," said Najjar, "as long as it protects people’s rights."

However, practicality only goes so far. At the furthest end of the Islamist spectrum stand courts linked to extremist groups such as the Islamic State and al-Nusra Front, where hudud punishments such as stoning and hand amputation — and worse — are unashamedly implemented. Little is known about how these courts function beyond relatively uninformative propaganda issued by the groups themselves, but their hard-line postures mean that codification of the law is likely out of the question. The Islamic State courts have grown into important governance mechanisms in the large areas of eastern Syria where the group is in control. By comparison, al-Nusra Front-linked courts are few in number and relatively limited in capability.

These courts have begun to play a role in the competition between al-Nusra Front and the Islamic State as both strive to claim the mantle of Salafi jihadism. This competition was apparently born out last week, for example, when an Islamic State tribunal in eastern Hama province stoned a woman for adultery. The same week, the Syrian Observatory for Human Rights reported — and other jihadists seemed to affirm — that an al-Nusra Front court in Idlib had carried out a stoning of its own.

A force to unify Syria’s disparate rebel governance structures is unlikely to emerge in the near term. In the meantime, the Syrian war will grind on, and the rebel judiciary will remain a focal point of the opposition’s internal wrangling over the identity of Syrian society. The questions surrounding what law to apply and how to apply it get at the heart of why Syrians rose up against the Assad regime in first place. "We revolted not to get rid of the state," said Majanni, "but for justice."

Justice, however, is a commodity in short supply in Syria these days. The challenge is not only in choosing a legal system to apply, but in determining the truth while the war still rages.

The resolution of the al-Sheikh Issa murder in August 2014 represents a case study of these difficulties. The Marea court eventually captured the murderer, but the judges were not confident they fully understood what happened. The murderer admitted to killing the man, saying the man had attempted to assault his wife. "But it is not reasonable that he could have entered her room without there being prior coordination between the two," read the court documents, "particularly because the house was full of other people at the time."

If there had been a relationship between the victim and the woman, the murderer would have received a lighter sentence because the UAC stipulates lesser punishments for crimes committed in defense of one’s honor. But that question looks like it will remain a mystery: As Khalil lamented, "I wanted to dig deeper into this during the investigation, but we were never able to do so."