Armed factions have “upper hand” over military judiciary in northern Aleppo

Mamoun al-Bustani | Hassan Ibrahim | Hussam al-Mahmoud | Khaled al-Jeratli 

When the military is the cause of violations in an area, containment and prosecution become a daunting task, which is what the judicial authorities of the Syrian Interim Government (SIG) face in the countryside of Aleppo, northern Syria.

The Turkish-backed opposition governing body is trying to adjudicate cases against soldiers, military entities, and leaders or those in positions of responsibility in the Syrian National Army (SNA).

Here rise the role of the Military Judiciary Department, which is assigned by the SIG’s Defense Ministry to administer the judiciary to control violations by military personnel and hold them accountable.

However, several cases showed the shortcomings in the administration of the military justice, which was not able to adjudicate definitively, which sparked a wave of resentment and accusations of incompetence, corruption, and subordination to the factions.

In this lengthy article, Enab Baladi reviews the state of the military judiciary in the areas controlled by the Syrian National Army and discusses with human rights advocates, military personnel, and social analysts the shortcomings in this judiciary and the impact of the lack of accountability on the region in general.

Military factions, the upper hand

Confusion and violations continue in the areas under the control of the SNA, with the recurrence of incidents that open the door wide to a state of chaos, violations, and lack of accountability in the region.

The state of lack of accountability has become apparent despite the presence of committees, institutions, and judicial bodies that have taken it upon themselves to hold perpetrators of violations accountable, especially military violations, which have created widespread controversy in the region.

“Military corruption” feeds demonstrations

The military police’s release of a man accused of belonging to the Syrian regime forces and committing violations against civilians in the city of al-Bab in the eastern countryside of Aleppo on 18 May, sparked the anger and resentment of the people.

The Military Police is the body authorized to hold accountable for the violations committed by members and fighters in the factions affiliated with the SNA in its areas of control, which include the northern and eastern countryside of Aleppo and the cities of Ras al-Ain and Tal Abyad in northern Syria.

The anger of the people was in response to the release of Muhammad Hassan al-Mustafa, 30, who is accused of collaborating with the Syrian regime, and who hails from al-Salihin neighborhood in the city of Aleppo.

Al-Mustafa admitted his participation in incursions, raids, and arrests in the ranks of the Syrian regime forces in several Syrian cities, such as Daraa, Homs, and Hama, and that he committed murder and rape.

The state of anger was not limited to the release of Mustafa, who was re-arrested by the Military Police hours later, but anger and resentment included the officials and those involved in his release.

The release decision was signed by the head of the Military Police branch, Colonel Abdulatif al-Ahmad, in exchange for a fine of 1,500 US dollars, mediated by the leader of the Sultan Murad Division affiliated with the SNA, Muhammad Yahya Khudair, known as Hamido al-Juhaishi.

Demonstrations and protests lasted for four days, accompanied by many statements by local authorities, factions, and leaders operating in northern Syria.

People’s anger, frustration

The escalation of the protests in al-Bab city began with the closure of the Military Police headquarters, followed by setting tires on fire in front of the entrance to the headquarters, and the erection of a tent in the same location, which they called the “tent of all.” The protesters promised to escalate in all peaceful ways and available means until all involved, and all those who contributed to the release of the accused are held accountable.

For his part, leader Hamido al-Juhaishi, sent Enab Baladi a voice note that the released young man is mentally ill and denied the correctness of his confessions of crimes and assaults, asserting that the faction handed him over to the judiciary in order to avoid any factional fighting in the region.

On 19 May, the SIG’s Ministry of Defense, the political umbrella of the Syrian National Army, issued a decision to establish an interim military commission of inquiry tasked with investigating the release decision, with the commission finalizing its investigations within a maximum of 72 hours, extendable only once, and presenting its report to the Minister of Defense to conduct the legal requirement.

Attempts to contain protests increase anger

The people’s anger at the formation of the investigation committee did not subside as protests escalated, which was met by the direction of the Minister of Defense in the SIG, Brigadier General Hassan Hamada, on 22 May, to the demonstrators in front of the Military Police branch, calling for the dispersal of gatherings, and he met some groups and spoke with a logic described by activists as an arrogant discourse that does not respect the people, which in turn fueled anger as well.

As a result, the protesters moved in front of the Ministry of Defense building in the village of Kafr Jannah in the Afrin region, north of Aleppo. Demonstrators from different cities and towns in the countryside of Aleppo also went to the ministry building and demanded the resignation of the Minister of Defense for not responding to the people’s requests to hold those involved in the incident accountable.

Following the escalation and on the same day, the Ministry of Defense issued an order that included several items, most notably the dismissal of the head of the Military Police branch, Colonel Abdul Latif Khaledal-Ahmad, the follow-up of investigations, and the referral of all those involved to the military judiciary.

On 23 May, the Revolutionary Commission for Liberation, the military faction operating in the countryside of Aleppo, issued a decision to arrest the leader, Muhammad Yahya Khudair, and refer him to the Internal Disciplinary Committee and to the military judiciary to complete investigations and legal procedures against him.

However, pictures of the leader Khudair (al-Juhaishi) outside the prison on the 30th of the same month brought back the anger of the families and activists, who expressed their regret for the release of the leader according to unknown considerations and circumstances.

This case is a clear example of a group of violations or corruption cases carried out by the military in the region, before which the military judiciary stands in a powerless position.

Weak and dependent judiciary

Nour al-Khatib, the director of the Department of Detainees and Forcibly Disappeared Persons at the Syrian Network for Human Rights (SNHR), explained in an interview with Enab Baladi that the main problem in the areas under the control of the Syrian National Army is the ineffectiveness of the military or ordinary courts in examining cases involving those accused of several violations.

Usually, the judiciary is neutralized, and the matter is left to the armed factions and groups and the resulting committees that are formed to consider each case separately with what these factions agree upon.

Al-Khatib believes that if the factions agree to hand over the accused to the judiciary, this will be done.

But this is a “pro forma” judiciary that considers the cases of ordinary people only, while the main perpetrators of violations escape accountability, she adds.

For al-Khatib, the reason for the state of incapacity is due to the fact that the judicial system is restricted, not independent, and does not have powers, as is the case with the judicial organs in all Syrian regions.

The absence of accountability is linked to the judiciary’s impotence, which is impossible to address as long as the controlling powers do not succumb to the force of the law and recognize the judiciary’s authority and independence, which will not happen, at least in the short term.

The director of the Detainees and Disappeared Section in the Syrian Network relies on many violations in which there is no role or intervention for the judiciary in northern Syria.

Justice is held by factions

Bassam al-Ahmad, the director of the Syrians for Truth and Justice Organization (STJ), in an interview with Enab Baladi, ruled out the existence of accountability in the first place and what the SNA-controlled areas are witnessing is the containment and disregard of issues related to the perpetrators of violations.

Al-Ahmad explained that the issue of the release of a person accused of murder and violations was preceded by the incident of the leader of the Sultan Suleiman Shah Division (al-Amashat), “the isolated” Muhammad al-Jassem (Abu Amsha), which was a real test for the so-called judiciary, as it was a case with clear evidence and results shown by a local investigation committee, but ended with no accountability.

It is not limited to the accountability of those involved in the release case of Mustafa, as it was preceded by many violations that shed light on the lack of accountability, most notably the trial of “Abu Amsha.”

After the formation of an impartial tripartite committee that investigated the violations and began its work on 12 December 2021, including Sheikh Abdul Aleem Abdullah, Sheikh Ahmed Alwan, and Sheikh Muwaffaq al-Omar, it issued its decisions after about two months of investigation.

The most prominent decisions were the criminalization of “Abu Amsha” and five leaders of the faction for the crime of corruption, the payment of compensation amounts to some of those affected financially, the dismissal of “Abu Amsha” from all duties entrusted to him, the failure to hand him any of the “posts of the revolution” later, and his exile from Afrin and its countryside for a period of two years.

However, these decisions did not come into force, as “Abu Amsha” continued to wander around the area as he appeared in a meeting with the head of the Interim Government, Abdul Rahman Mustafa, in March 2022.

“Unfortunately, there is no judiciary.” The judiciary in the region is not in a better condition than the judiciary of the Syrian regime, according to al-Ahmad.

“Judiciary and the law are exercised against the weak, and anyone who has a mediator or is close to it, or any faction or security apparatus, will not be held accountable,” he adds.

Poll

Enab Baladi’s poll on whether the military judiciary is able to control the violations committed by the military in northern Syria showed that 67 percent of the respondents voted “No,” while 33 percent of the respondents considered that the military judiciary is capable.

Judgments outside the judicial system

Ahmed Rahal, a defected brigadier general, considered that the military judiciary in northwestern Syria “is subject to the factional situation that the areas north of Aleppo, in general, suffer from.”

In an interview with Enab Baladi, Rahal considered that the region as a whole does not include the Ministry of the Interior, the Ministry of Justice, the military judiciary, or the military police. Rather, what it contains today are “theoretical titles” of the factional situation that the region suffers from.

With the beginning of the formation of the Syrian National Army in 2017, the opposition military factions had a special military court for each faction separately, as it was merged to form what is now known as the military judiciary and the military police, but implicitly these formations remained subordinate to the factions from which they came, according to Rahal.

As an example, Rahal, who resides in Turkey, was referred to trial in absentia by a faction of the Syrian National Army last year when the Sultan Suleiman Shah Division issued a sentence against him to three years in prison, according to a video recording published by the Division on its official accounts, in May 2021.

The accusation launched by the military faction that was led at that time by “Abu Amsha” was to insult and demean the “National Army” institution in general and the Sultan Suleiman Shah Division in particular.

The military faction does not have the powers to issue judicial rulings, despite the presence of military and civilian judicial bodies in the region, which Rahal considered a clear example of the lack of independent judiciary in the Syrian National Army.

“Abu Amsha” at the time was not referred to a civilian or military judiciary, noting that he was a civilian-military commander who did not have any clear military capacity, Rahal added.

During the same period, leaders of the Military Police contacted the general who defected from the Syrian army, according to what he told Enab Baladi, to inform him that they did not participate in issuing the decision but rather that it was a meeting announced by the faction during a video recording, which raised his astonishment.

Committees exclude judicial institutions

Bassam al-Ahmad, the director of the STJ organization, asked how to form a legal committee of three sheikhs with the support of the Syrian Islamic Council to conduct investigations in light of the presence of a military judiciary and judicial institutions, adding, “Where are the independent judges and where are the organizations and jurists?”

Serious accountability is not based on the formation of a legitimate committee in the presence of a military judiciary and judicial institutions, as this does not establish a legal or judicial ground and is evidence and indication that there is no accountability or any effectiveness for these institutions, al-Ahmad adds.

The rights advocate attributed the reasons for the inability of the military judiciary and others to hold violators accountable to the presence of several factions distributed over different regions, and each faction imposes its control over its region and acts independently away from judicial institutions.

Al-Ahmad believes that this case is an indication of the inability of the military and civil judiciary, the Ministry of Justice, and the political umbrella, which is the Syrian Interim Government.

Military judiciary

Military judiciary specializes in cases and problems that occur between military personnel, issues related to state security, or disputes in which one of its parties is a military person.

The Syrian Lawyer Club website prepared a research on the military judiciary in the Syrian constitution, which is applied in the areas of influence of the Syrian regime today, and it is similar to what is also applied in several Arab countries.

According to the Syrian Lawyer Club, the military judiciary is concerned with crimes committed by the military, “whether they are actors, partners, or intervenors,” and crimes against the military in person without their money or property, unless the money or property belongs to the army, or to the army and its interests, including civilians, whether they were actors, partners, or intervenors.

It is also concerned with crimes contained in the Military Penal Code, the Military Service Law, and other laws and decrees specified by the Military Penal Code applicable in a specific country, region, or authority.

Powers

According to Article 47 of the military rules stipulated in the Syrian Military Penal Code, the military courts are competent for several types of crimes, namely the military ones and those specified by Syrian law, such as treason, desertion, and others.

Crimes committed against the interests of the army are also considered directly within the jurisdiction of the military judiciary, which has the right to rule on them, in addition to crimes committed in camps, military institutions, and places occupied by the military for the benefit of the army and armed forces, regardless of the status of the perpetrators (civilians or military).

Also, crimes committed by members of allied armies residing in Syria, and crimes that affect the interests of these armies, are considered the prerogative of the local military judiciary unless there are contradictory agreements with their governments.

Among the crimes that the military courts have been granted to decide under special laws and regulations are violating orders issued by the martial law, such as firing shots on occasions, possession of a military weapon without a license, impersonation of military status or jobs, and practicing a profession subject to a law system without the right, in addition to dozens of crimes that apply to individuals.

Who defines a crime as military or civilian?

Article 51 of the Military Principles stipulates that only the military judicial authorities can determine whether a case is within their jurisdiction.

According to the Syrian Lawyer Club website, every dispute about this type of case is referred to these authorities for decision before considering the basis of the case. But if it considers that the case is not within its jurisdiction, it must return it to the civil court.

If the military court finds that the case is classified as a crime within the jurisdiction of the military judiciary and another of the jurisdiction of the civil judiciary (so that a settlement can be made between them), then it returns to the civil judiciary what belongs to it for consideration after the case file has been photographed.

The military judiciary becomes incompetent to consider the case against the civil party in the event that the military judiciary seized a case containing civil defendants covered by the military judiciary because there is a partner or a military intervention in the crime, and the case ended with the innocence or non-responsibility of the military party.

The martial ruler also has the power to refer crimes against state security to the Supreme State Security Court, even with the presence of a military party in the case.

30 military judges, public verdicts

Enab Baladi contacted the Justice Ministry of the Interim Government to find out about its role in following up the cases of military perpetrators of violations, but the ministry apologized for not commenting due to lack of jurisdiction.

Enab Baladi also tried to communicate with the Ministry of Defense, with which the Military Judiciary Department is affiliated in the Interim Government areas but did not receive any response.

Defense Ministry refers disputes to Military Judiciary

On 6 May, the Ministry of Defense of the Syrian Interim Government issued a statement on controlling military disputes through the administration of military justice in its areas of control.

The ministry limited the resolution and settlement of all disputes and quarrels within the ranks of the military establishment to the administration of the military judiciary and the relevant official institutions.

The statement called on all clan, popular, and social components in the areas under the control of the National Army to pour their efforts into serving the official judicial institutions and to stay away from finding any solutions or settling disputes outside the official judicial institution.

The ministry called for “unifying the word and arms against the enemies” and attributed the reasons to achieving justice, law, and equality for all and achieving the goals of the revolution.

Brigadier General Pilot Hassan Hamada, Minister of Defense in the Syrian Interim Government, had directed, during a meeting held on 27 May, with military leaders in the National Army to abide by the directives issued by the ministry.

30 judges in Military Justice

The SIG’s Ministry of Defense announces, from time to time, its need to appoint prosecutors and judges in the Military Judiciary Department in its areas of control. The last announcement was issued by the ministry on 16 May.

The Military Judiciary Department has been formed as one of the departments affiliated with the Ministry of Defense in the Syrian Interim Government in the northern Syrian regions since September 2018, according to the director of the Military Judiciary Department, Brigadier General Arafat Hammoud.

In an interview with Enab Baladi, Brigadier General Hammoud said, “We now have 30 judges distributed over the regions of Afrin, Azaz, al-Bab, Jarablus, Tal Abyad, and Ras al-Ain.”

The jurisdiction of the military judiciary is regulated in the Code of Military Procedure as follows: Personal jurisdiction: Article 50 of the Military Penal Code. Subject matter jurisdiction: Article 47 of the Military Penal Code.

The military judiciary in the countryside of Aleppo applies the Syrian criminal laws (the General Penal Code issued in 1949, the Military Penal Code issued in 1950, the Code of Criminal Procedure, and other Syrian criminal laws).

According to Hammoud, “it is natural for the military judiciary to consider all violations and crimes according to the rules of personal and subject matter jurisdiction.”

“Conciliation” committees do not conflict with Military Judiciary

Brig. Gen Hammoud indicated that the Defense Minister of the Interim Government has repeatedly emphasized the powers of the military judiciary as stipulated by law and not to go to committees and the like to resolve disputes outside official institutions, including the military judiciary.

However, there is a “conciliation” committee (the National Reform Committee), and its work does not conflict with the judiciary, according to Hammoud.

He stressed that the military judiciary is present and deals with all cases concerning the military.

As for the accusations leveled at the military judiciary about not holding the military members of the military factions accountable, Hammoud said that they are not true.

“We have records and statistics of the lawsuits filed against military personnel who violate the law.”

Hammoud expressed his regret that “11 years after the start of our revolution, we find those who are trying to distort any organized work in the liberated areas,” he said.

Open trials, judgments subject to appeal

Brigadier General Hammoud explained that “the Military Judiciary Department has two criminal courts, one in the city of Azaz in the countryside of Aleppo, and another in the city of Ras al-Ain in the countryside of al-Hasakah, and that there is a branch of the judicial inspection affiliated with the department.”

He indicated that all final judgments issued by the military judiciary are subject to appeal, noting that the Military Judiciary Department has an “adviser in the Court of Cassation, which is based in the city of al-Ra’i in the northern countryside of Aleppo.”

The Court of Cassation’s mission is to monitor the rest of the courts for errors that may occur and to correct those errors.

He pointed out that the trial sessions are public, and the defendant has the right to choose a lawyer to defend him, and in criminal cases, the department appoints a dedicated lawyer to defend the accused who cannot hire a lawyer.

“We give all care to detainees and convicts in military prisons in terms of food and clothing, enabling them to communicate with their families and ensuring their visits,” Hammoud said.

“We believe that we are working to serve our people in the liberated areas, but there is a peculiarity of judicial work in some of its stages,” Hammoud said.

He added, “We cannot make statements about the content of investigations in line with the provisions of the law, so as not to affect the course of the investigation, and so that the parties to the lawsuits would not be harmed by publishing facts that may not be proven against them.”

Hammoud considered that the Military Judiciary Department, through its work, challenges “terrorist organizations from the terrorism of the Syrian regime to the terrorism of the Islamic State group, to the terrorism of separatist parties,” in reference to the Kurdish parties in northeastern Syria.

Military Justice Department’s structure

The structure of the Military Justice Department covers the areas of Tal Abyad (Raqqa countryside), Ras al-Ain (al-Hasakah countryside), and the northeastern and western Aleppo countryside, and it has two judicial complexes, one in Ras al-Ain and Tal Abyad, and the other in Aleppo countryside, according to the director of the department, Brigadier General Arafat Hammoud.

Judgments issued by the military judiciary are implemented through the Military Public Prosecution, whether in the cities of Azaz or Ras al-Ain.

As well as the implementation of judgments through individual judges in the rest of the regions, according to legal mechanisms, after the decision becomes final and valid.

The implementation will be through the military police of the National Army, which has eight branches in the countryside of Aleppo, according to Hammoud.

Lack of accountability encourages crime

The effect of the ineffectiveness or obstruction of military justice is not only reflected on the two parties to the case or the litigants in it but extends to a social impact related to civil and societal peace when convicts are released among people before receiving a deterrent punishment that does not necessarily guarantee that the violation, misdemeanor, or crime will not be repeated, but it was developed for this purpose.

On the effects of impunity for those convicted of crimes, Hassan al-Mousa, the head of the branch of the Free Lawyers Syndicate in Aleppo, said that the problem lies in the absence of a real effective authority and that in some stable countries, the civil societies complain about the military authority’s transgression over civil rights, and struggle to get rid of the desire of their authorities to subjugate them to the military judiciary. This means that the matter is more complicated when talking about “undisciplined” military authorities.

Al-Mousa explained to Enab Baladi that the goal of punishment in all laws, in addition to reform, is public and private deterrence. Therefore, impunity for perpetrators of crimes carries negative effects on society, including the increase in the spread of crimes of all kinds, which creates cases of chaos and the inability to control the street. And it may lead to strife and infighting that leads to the loss of societal safety and the spread of panic among the most vulnerable components of society.

One of the effects that could also result from obstruction of the judiciary or non-enforcement of judicial rulings, whether against soldiers or convicted civilians, is the increase in the number of perpetrators of crimes, given that the absence of deterrence and ensuring impunity will incite violence and chaos in society.

The presence of a criminal record in some areas of the north to document, preserve, and archive the names of convicts is an insufficient step to achieve social stability unless it is accompanied by effective cooperation between society and the existing authorities, according to the head of the Free Lawyers Syndicate Branch.

Al-Mousa called for the creation of rapid intervention mechanisms to prevent the occurrence of some crimes before they are committed, to reduce the effects of some crimes after their commission, and to find a sophisticated and effective monitoring mechanism by the local authorities.

Safwan Moushli, a social researcher, returns to a stage that precedes the same problem by raising questions about the legitimacy of the “de facto authorities” in northern Syria before discussing the behavior of those entrusted with the issue of law enforcement in light of multilateral fighting for more hegemony in the region.

Moushli believes that the lack of effectiveness of the military judiciary is also accompanied by the absence of civil law on the ground, as there are no controls or guarantees for implementing the law, despite the attempt to form a legal structure in the region consisting of law, courts, judges, lawyers, and an administration regulating their internal relations represented by the authority of the public prosecutor.

The increase in the effectiveness of the military judiciary and the military authorities, in general, may have a negative impact on the street with the residents of the area and its displaced people and create more militarization that the Syrian people fought and revolted against, which means that the biggest beneficiary of such a situation is the Syrian regime, which points to the north as a “failed experiment” outside its control, the social researcher adds.

On the case of the military police releasing an accused of war violations from its prisons in the eastern countryside of Aleppo on 18 May, Moushli considered that incidents of this kind constitute a betrayal of the revolution, pointing out the region’s need for security and intelligence scrutiny that civilian citizens cannot undertake, as it is an act of countries whose security and intelligence services’ behaviors are governed by supreme interests, which are the national security of the country.

In his interview with Enab Baladi, Moushli said that the release of a person who confessed to committing crimes is considered negligence that amounts to betraying the security of the assaulted population by those who were released in return for a sum of money, which constitutes evidence of the failure of the military formations to be part of a civilized authority, according to his expression.

On the impact of the ineffectiveness of the law on inciting crime, Moushli explained that when the modern society’s authorities collapse, people resort to the traditional authorities as the last bastions of protection for the group, so clan, factional, and sectarian groups become stronger than being subject to modern laws, especially after stripping them of the power elements.