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بواسطة ARAB REFORM INITIATIVE Admin - ٣١ يناير، ٢٠١٨

Maëlla DUCASSOUX


Introduction


Since 2011 and the beginning of the Syrian revolution, the country has been experiencing a fragmentation of its territory[1]. This fragmentation results from the repartition of the different armed groups, between the multifaceted oppositions and the regime with its allies[2]. Hence there is no territorial continuity which impairs the implementation of a coherent legal order and entrenches the fight against terrorism.


Mireille Delmas-Marty argues that terrorism is more a political concept than a legal one[3]. Hence, being labeled as a terrorist allows states to impose extraordinary rules on these groups. Further, it is worth noting that counter-terrorism regulations all over the world highlight the fragility of human rights. Since 9/11, the international trend heads toward more authoritative judiciary systems when fighting terrorism. That is why Giorgio Agamben denounces that fight against terrorism leads contemporary states toward a perpetual state of emergency[4].


As a response to state violence, terror has been used by every actor in the Syrian conflict. Assad's regime, under the guise of countering islamisation of the opposition, perpetuates violent killings and disappearance of civilians. Thus, counter-terrorism regulations have been instrumentalised to silence dissent too[5]. The tremendous violence during the Syrian revolution demonstrated that terrorism became a war technique in itself, negating international humanitarian law (IHL) and human rights in general. However, terrorism remains a blurry criminal offence which allows to encompass various political actions, being carried out to terrorise or not.


How does the Syrian experience shed lights on the political use of terrorism? Even if an evasive definition of terrorism is provided under Syrian law, concrete repressive rules have been established. This paper first provides a critical analysis of the Syrian legal order on terrorism (I). Then, terrorism will be opposed to other international law crimes in order to frame a clear definition of terrorism (II).


I)Syrian regulations on counter-terrorism and its instrumentalisation


A) The Syrian legal order


The current Syrian legal framework on terrorism is based on two main regulations[6] enacted in 2012 during the civilian uprising which aimed to lift the state of emergency[7]. Law 19 provides a definition of terrorist actions and relevant penalties. Law 22 establishes Counter-Terrorism Courts (CTC) and regulates the procedure in terrorism cases. Both regulations have to be articulated together in order to highlight their limitations. This research does not provide an exhaustive review of the 2012 Syrian regulations. It rather highlights major issues in the current Syrian legal order.


Article 1 of law 19 offers a very broad definition of terrorism which paves the way to arbitrary interpretations. In fact, it states that a terrorist act is “any action aimed at (…) harming the State’s infrastructure (...) whatever the type of the manners or by using any tool leading to the same purpose”. Further, Article 8 of the same law allows prosecution against anyone who distributes publications or information stored in any form with the intention of promoting the means of terrorism or terrorist acts. These Articles have been used and interpreted to prosecute human rights activists documenting violations and torture against detainees at the security branches[8]. In fact, Syrian state branches assimilate any opposition groups to a potential detractor of the state and thus to a terrorist[9].


Furthermore, legal certainty is impaired by the fact that sentences are not predictable. Indeed, paragraph 3 of Article 3 of law 19 states that certain terrorist acts lead to a higher sentence, meaning that judges at CTCs can apply the death penalty to more acts than those explicitly punishable by death according to the law. Another issue comes from mandatory death penalty which deprives judges from their independence (Art. 6, paragraph 3; Art. 5, paragraph 2, law 19). Other mandatory sentences result from law 20 of 2012 dealing with state employees convicted of terrorism. It imposes double sentences against this category of person. Hence, judges cannot balance their judgments according to the person at stake.


Further, even though CTCs have been created to replace Supreme State Security Court (SSSC), they share the same process. CTCs are explicitly exonerated from sticking to due pr ocess principles stipulated in the Syrian Criminal Procedure Code (Art. 7, law 22) and trials are not public and not open to appeal. Also, the Syrian Human Rights Committee reported that defence lawyers are prevented from effectively defend their clients by not seeing them prior to the trial and also by being denied the chance to speak out last before adjudication[10]. Thus, CTCs lawfully render summary justice without due process rights, guaranteed in regular jurisdictions[11]. Further, the Violations Documentation Centre in Syria gathered testimonies denouncing that each CTC judge acts temperamentally[12] and judges presiding CTCs include a member of the military (Art. 2, law 22)[13]. Also, the International Legal Assistance Consortium reports that CTC judges do not have immunity regarding their decision and that they fear security services[14]. Moreover, even though Article 81 of the Syrian Jud icial Authority Law (1961) states that judges must be independent and impartial, no safeguard has been established to recuse judges.


Furthermore, public prosecutors, directly linked to the executive branch, can refer some crimes to the CTC if deemed relevant (Art. 3, law 22). Therefore, independence of the judiciary is jeopardised by both the legislative and the executive branches[15]. In fact, another important deadlock in Syria relies on Article 132 of the new 2012 Constitution which provides that the President of the Republic ensures the independence of the judiciary assisted by the Supreme Judicial Council. The Carter Center highlights concerns resulting from this wording. It bemoans the fact that the Supreme Judicial Council composition is left to the legislative power (Art. 133). So is the appointing, disciplining and dismissal of judges (Art. 136). Therefore, due to the power enjoyed by the President of the Republic, independence of the judiciary is currently not guaranteed in Syria[16].


B) Safeguarding human rights in counter-terrorism policies


Providing a legal framework to allow prosecution of terrorism is necessary on the ground. However, even though terrorism must be repressed, isolating it by setting extraordinary rules derogating from regular due process rights is problematic. Moreover, research carried out, especially since 2001 – witnessing the multiplication of derogatory systems to prosecute terrorism - showed that ultra-repressive, secret and summary justice is not efficient against terrorism. Daesh's genesis is another example of state management of terrorism with constant human rights violation as a leitmotiv for a tremendous hatred and violence[17].


Fostering human rights constitutes the bedrock of the rule of law. Access to a fair tribunal and due process rights must be ensured and sanctioned in case of violations. These rights are enshrined in the International Covenant on Civil and Political Rights (1966) (ICCPR) which was ratified by the Syrian Arab Republic in 1969[18] and entered into force in 1979. The United Nations (UN) task force on counter-terrorism highlights that Articles 9, 12 and 14 of the ICCPR require states to ensure that people arrested are informed of any charges against them and that they should be presented to a judge and be allowed to exercise their defence rights. Therefore, any alleged criminal shall enjoy equal rights before the court, shall be presumed innocent, shall enjoy an effective access to a lawyer before the trial, shall be tried in public before an independent and impartial court, shall be tried in a reasonable time, and shall have the right to judicial review[19]. Further, according to the General Comment 32 on Article 14 of the ICCPR issued in July 2007 by the Human Rights Committee, these guarantees shall apply in any criminal cases, including war crimes, including terrorism[20].


Further, Professor Laura Dickinson demonstrated in a 2001 paper criticising the use of Military Courts by the USA in their fight against terrorism, that legal process and inclusion of terrorism cases within civilian jurisdictions is crucial for a balanced society. In fact, trials offer a civic scene of dialogue where different opinions can be advocated and solidarity would emerge from publicdissensus[21]. Some scholars, recalling the Durkheimian social solidarity concept, propose that “discursive solidarity” can come out from trials[22]. Thus, sentences will be more socially efficient. In fact, extraordinary court systems generate multiple cases of abuse and tend to take over regular ones. Reports on Syria highlight that the majority of criminal cases are now deferred to CTCs which, like the Military Court system in the USA, relies on secrecy, torture and small committee, leading to more arbitrary decisions[23].


Besides, the Durkheimian analysis on the role of the law as the symbol of social solidarity highlights how criminal law participates in regulating societies. Common rules inclusively implemented can foster the sense of community[24]. Law is violent as it does sentence criminals to be deprived of their property, to perpetual imprisonment or even death in some situation. However, in order not to exacerbate violence and anger among fellow “terrorists” or to provide martyrs' discourses, legal procedure respecting human rights is essential if one wants to tackle terrorism and fairly condemn those who are found guilty of this crime. Moreover, public trial, free from torture is a cornerstone of fair justice.


Hence, due to arbitrariness, social violence increases. An inclusive judiciary system is crucial to build a sustainable state. Research on the Syrian ground reveals that different opposition groups were fighting over which courts to use[25]. Therefore, it is essential to ensure due process rights and fair courts in terrorism cases in order to foster trust within the judiciary system. Finally, the principle of legality, nullum crimen, nulla poena sine lege must be ensured by providing a clearer and narrower definition of terrorism. Individuals shall not be punished if their conduct had not been previously criminalised by intelligible laws[26].



II) Terrorism, international humanitarian law and international criminal law


A) Terrorism and war crimes


Terrorism remains a controversial concept in international criminal law (ICL). The international community cannot agree on one common definition of terrorism, especially for including state violence or resistance to foreign occupation[27]. Within the Syrian context, these questions take on even more significance as different armed groups, including state's services, are constantly targeting civilians. Further, the concept of state terrorism remains taboo as each nation-state defines its own rule of law and that the state enjoys the “monopoly of legitimate violence”. In fact, terrorism was originally used to describe the French Terror system after the 1789 revolution[28]. Then, state terrorism has been developed among non-aligned countries mostly, based on denouncing colonisation policies or military state like Pinochet in Chile[29].


Moreover, depending on the context, terrorism can overlap war crime. ICL provides distinct regulations during war times through IHL. IHL results from the four Geneva Conventions (1949) and their Additional Protocols (1977) and applies in wars and armed conflicts. The cornerstone of IHL relies on the distinction between combatants and civilians. The rationale is to ensure human rights protection during war times.


Further, an opiniojuris conceiving terrorism as a crime occurring in times of peace seems to prevail. In fact, both Western and Islamic ethics endorse IHL and consider that deliberate targeting of noncombatants and the terrorising of civilian populations amount to war crimes[30]. Nonetheless, the Special Tribunal for Lebanon (STL) in a 2011 interlocutory decision on the applicable law on, inter alia, terrorism described that many states if not a majority head toward the recognition of terrorism as a distinct crime from war crimes even during armed conflicts[31].


However, one can wonder about the relevance of such qualification because it legitimates the creation of extraordinary rules, already existing under IHL. In fact, human rights are at risks during armed conflicts and considering a specific crime of terrorism distinct from a war crime during these times will favour increasing states' violence. Indeed, armed conflicts should see IHL applying in order to include terrorist acts within war crimes and avoid extraordinary rules to spread and breach human rights.


Therefore, terrorism must be understood as a crime committed in times of peace. Further, the 2012 Syrian definition of terrorism appears to take this path as it deleted “weapons of war” as means to commit terrorist acts[32]. Thus, the Syrian definition of terrorism became closer to the Lebanese one even though the former yet differs from the latter in its subjective element. Indeed, Syria considers that destabilising the identity of the state is the subjective element of terrorism whilst Lebanon narrows it to people driven by the willing to terrorise.


For instance, the STL definition of terrorism, based on Lebanese law, defines it as:

  1.  the volitional commission of an act  or the credible threat of an act;
  2. through means that are liable to create a public danger
  3. and the special intent to cause a state of terror [33].


B) Terrorism and crimes against humanity


The distinction between terrorism and crime against humanity is also delicate. If the one between war crime and terrorism is more contextual - war or peace times - the distinction between terrorism and crime against humanity focuses on the intensity of perpetuated violence and its planning.


Crimes against humanity are defined by the Rome Statute (1998), establishing the International Criminal Court, as “any (...) acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack[34]. Hence, such crimes require a “widespread or systematic attack” and therefore cannot be used for an isolated murder, torture or any other violent crime[35]. However, international criminal tribunals judged that an isolated person, acting in the context of a widespread or systematic attack against civilians can be convicted of crime against humanity[36]. Moreover, the International Criminal Tribunal for Rwanda (ICTR) recognised that the subjective element of the offence can be “potential” (dolus eventualis). That is to say that the sole conscience of the author to participate in such ideology is enough to convict the said person for crime against humanity[37]. Therefore, in some contexts, the terrorist qualification will be evicted in order to prosecute a crime against humanity instead.



It is worth noting that terrorism under IHL – interstate agreements or droit pénal international - is understood as a violation of customs of war. However, international criminal law - supranational rule or droit international pénal - refuses to recognise any custom on terrorism[38]. Such discrepancy sheds lights on the issue of protecting human rights when fighting terrorism. Indeed, interstate agreements accept that terrorism can be included as a war crime during armed conflict but there is no consensus around including terrorism within the scope of crime against humanity. Hence, ensuring human rights when fighting terrorism in times of peace is hindered.


During the drafting of the Rome Statute, states did not agree to encompass the special crime of terrorism within crimes against humanity. Since then, two opinions oppose each other. On the one hand, some argue that because the question of integrating terrorism within crimes against humanity has been raised and rejected, there is no debate left about considering terrorism as a possible component of crimes against humanity (like rape, torture, murders or kidnapping can be under certain circumstances). On the other hand, others understand that this rejection concerns the definition of terrorism as it is established in international treaties. Thus, the latter contends that the same states agreed on a common definition of crimes against humanity which, from a literal analysis, can lead to consider certain terrorist acts as crimes against humanity[39].


Furthermore, it is worth noting that the ICTR considered that a non-state entity can perpetuate a crime against humanity too. The entity requires to gather enough power to organise and establish a clear plan of action. Hence, Daesh's actions would rather fall under the category of crime against humanity than terrorism whereas other groups, due to their lack of coordination, could fall under a terrorism qualification. For this, it is essential to ensure fair tribunals and prevent derogation to due process rights to try other groups, being islamists or not.


Conclusion


“The life of the law has not been logic: it has been experienced”[40]. The tremendous violence exacerbating in Syria alerts society on the need for inclusive regulations capable of reshaping solidarity on the ground. Loss of social structure, violence, and crimes can result from conservative laws, less adaptable to societal changes[41]. That is why terrorism definition is a headache. Would narrowing the definition of terrorism help to try it? Should the subjective element of terrorism encompass “destabilising the state”? Counter-terrorism regulations can turn the law into an instrument of terror and threat instead of being an element of modern protection[42].


Terrorism remains a complex category of crime that encloses various understanding according to the power in place. Laws are not just theories or facts. They result from political goals and history. Therefore, regulations mean something about human societies. Whether based on a skeptical mindset where “man is a wolf for man”[43] or on a consensus through a “social contract”[44], laws organise societies. Therefore, one can wonder if terrorism is another “ordinary” crime or not. If terrorism is considered as another extraordinary crime, what will be the social consequences? In which society does one want to live in? Are repression and violence of the state efficient to tackle terrorism? Or should trials rather be public in order to exteriorise social dissensus and move on? Which safeguards can be established in order to ensure a fair and efficient justice? The way laws are framed reveal something from the psychology of a society. Further, scholars explain that war against terrorism can be defined as a war against human rights[45]. Human dignity cannot be denied in any circumstances, even in counter-terrorism policies.

 

 

 

[1]International Legal Assistance Consortium (ILAC), Rule of Law Assessment Report: Syria 2017 [ILAC (2017)]

[2]Vignal Leïla, « Pérennité et transformations de la frontière syrienne », Confluences Méditerranée, 2017/2 (N° 101), p. 39-52. DOI : 10.3917/come.101.0039. URL : https://www.cairn.info/revue-confluences-mediterranee-2017-2-page-39.htm, p7

[3]Vadillo Floran, « Du terrorisme en démocratie », Sécurité et stratégie, 2015/1 (20), p. 5-13. URL : https://www.cairn.info/revue-securite-et-strategie-2015-1-page-5.htm [Vadillo Floran (2015)]

[4]Giorgio Agamben, Homo Sacer. II, 1, État d'exception, traduit par Joël Gayraud, Paris, Éditions du Seuil, 2003

[5]Wladimir Glasman, « 2. Les ressources sécuritaires du régime », in François Burgat et al., Pas de printemps pour la Syrie, La Découverte « Cahiers libres », 2013 (), p. 33-53., p52

[6]Law number 19 on counter-terrorism and providing legal definition of terrorism ; Law number 22 establishing counter-terrorism courts

[7]State of emergency was in place for half a century in Syria. Declared in 1963 after Hafez Al-Assad's coup.

[8]Violations Documentation Center in Syria (2015) [VDC (2015)]

[9]Interviews from ILAC and Amnesty International in ILAC (2017), op. cit., p65

[10]Syrian Human Rights Committee, ‘Five years on the dissolution of The Supreme State Security Court: Repression as a court’, 21 April 2016, ˂http://www.shrc.org/en/?p=27146˃

[11]ILAC (2017) op. cit., p31, 47 and 48

[12]VDC (2015) op. cit., p17

[13]Concerning military courts in the USA to prosecute alleged terrorists, see also: DICKINSON Laura A., “Using Legal Process to Fight Terrorism: Detentions, Military Commissions, International Tribunals, and the Rule of Law”, Southern California Law Review, 2002, vol. 75, p. 1407. - p1422

[14]ILAC (2017) op. cit., p70

[15]Comprehensive information on Syrian Constitutional Reform and the Rule of Law can be found at http://syrianexperthouse.org/archives/727

[16]The Carter Center, Syria’s Transition Governance & Constitutional Options Under U.N. Security Council Resolution 2254, Working Paper, June 2016, p9

[17]Martin Chulov, ISIS the inside story, The Guardian, 11 December 2014

[18]Comprehensive information on UN human rights covenants ratification can be found at: http://indicators.ohchr.org/

[19]Comprehensive information on UN Counter-terrorism implementation task force can be found at: https://www.un.org/counterterrorism/ctitf/en/right-fair-trial

[20]Ibid

[21]Savelsberg, Joachim J, « L'organisation sociale du déni et de la reconnaissance : atrocités, connaissance et interventions juridiques », Actes de la recherche en sciences sociales, vol. 173, no. 3, 2008, pp. 111-118, p115 [Savelsberg, Joachim J. (2008)]

[22]Mark J. Osiel, Mass Atrocities, Collective Memory, and the Law, New Brunswick, Transaction Publishers, 1997, p.51 in Savelsberg, Joachim J. (2008), op cit. p115

[23]Dickinson Laura A., “Using Legal Process to Fight Terrorism: Detentions, Military Commissions, International Tribunals, and the Rule of Law”, Southern California Law Review, 2002, vol. 75, p. 1407. [Dickinson Laura A. (2001)]- p1481

[24]Durkheim, Émile. « Solidarité mécanique ou par similitudes », De la division du travail social. sous la direction de Durkheim Émile. Presses Universitaires de France, 2013, pp. 35-78., pp70 and 72

[25]ILAC (2017) op. cit., p79

[26]Ibid

[27]UN High-Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility (UN, Dec 2004), p 51; Décision préjudicielle sur le droit applicable: terrorisme, complot, homicide, commission, concours de qualifications, Numéro de l’affaire: STL-11-01/I/AC/R176bis, Numéro du document: F0010, Référence du document: STL-11-01/I/AC/R176bis/F00I0/20110615/R000771-R000947/EN-FR/pvk, 2011-02-16, [STL interlocutory decision (2011)] p56

[28]Vadillo Floran (2015), op. cit.

[29]See Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet; Regina v. Evans and Another and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet (On Appeal from a Divisional Court of the Queen's Bench Division) in Kimberley N. Trapp, State Responsibility for International Terrorism, Oxford Monographs in International Law (University Press), 28 July 2011, 352p, ISBN: 9780199592999, p100 et seq

[30]Sohail Hashmi, Terrorism and Jihad 7 (Nov. 9, 2001) (on file with author). See also Sohail Hashmi, The Terrorists’ Zealotry Is Political Not Religious, WASH. POST, Sept. 30, 2001, at B1. In Dickinson Laura A. (2001) op. cit., p1489

[31]STL interlocutory decision (2011), op. cit., p80 et seq

[32]Weapons of war was mentioned as a mean used for committing a terrorist act under the former Article 304 of the Syrian Criminal Code effective until 2012.

[33]STL interlocutory decision (2011), op. cit., pp4, 149 and 150

[34]Rome Statute (1998), Article 7

[35]Mireille Delmas-Marty, Isabelle Fouchard, Emanuela Fronza et Laurent Neyret - « Chapitre 1er », Le crime contre l'humanité , Paris, Presses Universités de France, « Que sais-je ? », 1013, 128 pages, pp 7, 8

[36]« La transformation d'unacteindividuel en crime contre l'humanité est ainsi opérée par un lien avecuneattaque identifiée » : Y. Jurovics, Article 7, in Statut de Rome de la Cour pénale internationale. Commentaire article par article, J. Fernandez et X. Pacreau (dir.), Paris, Pedone, 2012, p. 465. in Julie Alix, Réprimer la participation auterrorisme, RSC 2014 p.849

[37]TPIY, ch. prem. inst. I, 3 mars 2000, Blaskic, op. Cit., § 257. in Julie Alix, Réprimer la participation auterrorisme, RSC 2014 p.849

[38]Le proc. c/ Stanislav Galic, IT 98629-T, jugement TPIY 5 déc. 2003, §§ 133-138, op. dissid. Nieto Navia.

[39]Julie Alix, Réprimer la participation auterrorisme, RSC 2014 p.849

[40]Jr.  Oliver Wendell Holmes, The Common Law (1881),  Edited by Paulo J. S. Pereira & Diego M. Beltran, University of Toronto Law School, Typographical Society - September 21, 2011,p5

[41]David Garland - The Culture of Control: Crime and Social Order in Contemporary Society – p99 see the Reactionists and the Neo-conservatismin the USA during the 1970's.

[42]Garapon, A. (2008). La lutteantiterroriste et le tournant préventif de la justice. Esprit, mars/avril,(3), 139-157. doi:10.3917/espri.0803.0139.

[43]Thomas Hobbes, « Homo homini lupus », Léviathan, (1651)

[44]Jean-Jacques Rousseau, Du Contrat Social, (1762)

[45]D. Rose, Guantanamo : America's War on Human Rights, London, Faber and Faber, 2004 inMireille Delmas-Marty Le paradigme de la guerre contre le crime : légitimer l'inhumain ?, RSC 2007 p461


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Thanks so much