General amnesty: Syrian regime’s trap to capture military defectors
Enab Baladi – Saleh Malas
Article No. 75 of the 2012 Syrian Constitution states that the People’s Assembly, as the legislative authority in Syria, has the authority to approve a general amnesty. This principle is derived from Article No.71 of the previous Constitution 1973, where the constitution does not expand beyond specifying the authority that approves a general amnesty.
According to Article No. 108 of the constitution, only the president of the Syrian republic can grant a special pardon.
The general amnesty in Syria, accordingly, is read within these two articles to show that Bashar al-Assad, head of the Syrian regime, has a complete monopoly on the power of general amnesty through legislative decrees that he issues at the time he needs. This action is described as the abuse of the executive authority over the legislative authority.
Al-Assad issued a general amnesty on 23 January for internal and external desertion crimes related to military personnel.
Under the legislative decree, perpetrators of crimes of internal escape are granted an amnesty for the full penalty stipulated in Article No. 100 of the Military Penal Code, issued in Legislative Decree No. 61 of 1950 and its amendments.
Also, perpetrators of the crimes of external desertion are granted an amnesty for the full penalty stipulated in Article No. 101 of the Military Penal Code.
According to the decree, the provisions of the article do not include absconders from justice and those who have absconded unless they surrender within a period of three months for internal desertion and four months for external desertion.
The principle of general amnesty is understood as halting the impacts of the Penal Code in the matters mentioned in the amnesty instruct and removing the criminal capacity of a specific act that entails forfeiting the public right. Therefore, the general amnesty may only be issued by the legislative authority from both constitutional and legal sides.
A well-informed lawyer, who spoke to Enab Baladi on condition of anonymity, says the general amnesty, which is permitted by the constitution, does not aim to raise the popularity of the one who issues the decree, but the president (al-Assad) makes it so, he added.
The president violates the constitution by grabbing this power in order to appear as someone who pardons people and to cover the brutality of his regime, and that clears up the timing of the general amnesty in 2021, before the presidential elections, said the Damascus-based lawyer.
Al-Assad’s low popularity is due to the security mindset in dealing with the mounting challenges and hardships within the Syrian society and the state alike, where there is no respect for dignity, freedom of speech, or human rights.
Therefore, the low popularity is not linked to a specific event that may bring short-term glare, such as issuing a general amnesty on a specific occasion, since it will not address the main demand in the country, which is the survival of the current regime despite the piling crises and abuses within the Syrian society, so any expected hike in al-Assad’s popularity due to any general amnesty will not surpass several days.
With the exclusion of two times in which the Syrian Parliament issued a general amnesty over the last twenty years (the first pardon No.17 in 2000 and the second partial amnesty law for some military crimes No.56 in 2002), the People’s Assembly, which is considered the legislative authority in Syria, is no longer issuing any general amnesty law, according to the lawyer, whose Enab Baladi withheld his name for security reasons.
Within these facts, the People’s Assembly completely relinquished its constitutional power to al-Assad, who in his turn, has monopolized this authority even during sessions of the People’s Assembly, amid a complete reluctance by the parliament to exercise power conferred on it by the constitution.
Law and legislative decree
Law: Issued by the People’s Assembly during its legislative session.
Decree: Issued by the President of the Republic outside the legislative roles, and both types have their own binding legislative origins and power.
The legislative decree comes at the top of the pyramid among the types of decrees and is similar to the law in its power and differs only from the one who issues it. The legislative decree is issued in special cases characterized by haste when the People’s Assembly is out of session and can amend laws and laws can amend legislative decrees.”
A trap to capture army defectors
The army personnel, who deserted the military service and were included in the general amnesty, have their own concerns of a trap being set up for them, the lawyer reveals.
The goal of the latest amnesty is to bring more manpower due to the sharp shortage of army personnel.
According to the Middle East Institute, the Syrian regime army has been decimated by ten years of war. Defections, deaths, and a lack of funding have gutted its ranks. The inability of Damascus to fully deploy its official army led to the rise of paramilitary militias and an influx of pro-regime foreign fighters.
Army defectors who joined opposition factions in northern Syria have their fears of being arrested by the military intelligence if they surrender. “Only God will know their fate,” the lawyer says.
Al-Assad is considered one of the most ‘preeminent’ rulers in the Middle East to issue amnesty decrees against convicts in prisons since taking power in 2000, but these decrees in most cases do not include prisoners of conscience, politicians, and those who participated in peaceful activities at the beginning of the Syrian revolution in March 2011. Instead, most of them included perpetrators of petty crimes, infractions, drug smuggling, theft, and fraud.
A general amnesty is granted to people whose cases no one has studied, and this offends the value of the punishment as a social and disciplinary measure, unlike a special amnesty, in which it is supposed to come to alleviate the judicial stringency or to save someone who would not have committed crime had it not been for dire circumstances that he could not resist.
Consequently, the legislator rarely issues a general amnesty. However, al-Assad has used this power frequently, as he has issued since 2011 about 17 general amnesties between blanket amnesties and partial amnesties for military crimes.
The Syrian Association for Citizens’ Dignity (SACD) considered the recent amnesty decree a dangerous attempt to mislead the displaced Syrians, especially the young ones, by returning to an unsafe Syria, where they would face enforced disappearance, arbitrary arrest, torture, and death.
According to the association’s report, issued last January, every returnee to Syria is a detainee project, and there is an especially huge fear for the lives of army defectors who might consider returning.
In November 2020, the Court of Justice of the European Union (CJEU) issued a verdict with a “strong assumption” that the refusal to perform military service in the condition of the ongoing armed conflict in Syria is linked to reasons that may lead to the recognition of the right to asylum because in many cases this refusal is an expression of political opinions or religious beliefs.
The EU’s highest judicial body found that a person’s refusal to perform military service is linked to one of the five grounds for recognition as a refugee.
The CJEU considers that “the war crimes committed by the Syrian army are well documented, and desertion from military service is classified by the Syrian authorities as an expression against the regime.”
“It is very likely that the authorities will interpret the refusal to perform military service as an act of political opposition,” according to the European Justice Court.
The CJEU called on the EU authorities, which study asylum applications, to inspect the reason for refusing to perform military service and whether it would expose the asylum-seeker to one of the five forms of persecution based on race, religion, nationality, political opinions, or membership in a particular social group.
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