––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ILAC Rule of Law Assessment Report: ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Syria 2017 This report details the findings of a team of experts from member organisations of the International Legal Assistance Consortium (ILAC) based on an assessment of justice sector institutions in Syria. Editor: Mikael Ekman Turkey Qamishli Aleppo Hasakah Idlib Raqqah Latakia Hama Syria Deir ez Zur Tarsus Homs Palmyra Lebanon Damascus Iraq Daraa Jordan 0 250 500 Km ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ILAC Rule of Law Assessment Report: ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Syria 2017 This report details the findings of a team of experts from member organisations of the International Legal Assistance Consortium (ILAC) based on an assessment of justice sector institutions in Syria. Editor: Mikael Ekman 02 03 Report Syria 2017 ILAC Rule of Law Assessment Report Table of Contents ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Table of Contents . 03 Abbreviations . 05 Executive summary . 07 Part 1 ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– I. Introduction . 13 II. Historical and legal background . 19 2.1 Before independence . 19 2.2 Independence after the second world war . 20 2.3 The Assad rule . 22 2.4 The 2011 uprising and armed conflict . 25 III. The justice system in the Syrian Arab Republic . 29 3.1 The courts . 29 3.2 Exceptional courts . 42 3.3 The legal profession . 48 3.4 Status of women . 51 Part 2 ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– IV. Developments after the 2011 uprising . 59 4.1 Areas under government control . 61 4.2 Common features of areas outside government control . 75 4.3 Detailed overview of four areas outside government control . 82 4.4 Areas under kurdish control . 106 4.5 Areas under Isis control . 128 Part 3 ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– V. Planning for peace – anticipating conflict- related justice challenges in Syria . 139 5.1 Accountability . 141 5.2 Missing persons . 145 5.3 Housing, land and property . 148 5.4 Personal documentation . 150 5.5 Empowering women both inside and outside Syria . 154 Annex to the Assessment . 159 04 05 Report Syria 2017 ILAC Rule of Law Assessment Report ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Abbreviations ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– CTC . Counter-Terrorism Court FSA . Free Syrian Army ICC . International Criminal Court ICMP . International Commission of Missing Persons ICRC . International Committee of the Red Cross ILAC . International Legal Assistance Consortium ISIS . Islamic State in Iraq and Syria KDPS . Kurdish Democratic Party of Syria NGO . Non-governmental organisation PKK . Kurdistan Workers’ Party PYD . Kurdish Democratic Union Party SCC . Supreme Constitutional Court SLPS . Syrian Law of Personal Status, Legislative Decree No. 59 of 17 September 1953 SSSC . Supreme State Security Court TEV-DEM . Movement for a Democratic Society UN . United Nations US . United States of America YPG . People’s Protection Units 06 07 Report Syria 2017 ILAC Rule of Law Assessment Report ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Executive Summary In November 2016, a six-person team of experts from member organisa- tions of the International Legal Assistance Consortium (ILAC) conducted an assessment of the justice sector in Syria. In addition to the ILAC assessment, the team included a gender expert who also conducted a specific study of the status of women in the Syrian justice sector. Findings from that study have been included in this report. In total, the team met with over 100 Syrian legal professionals, civil society actors and international officials. Among those interviewed were approximately 70 Syrian judges and lawyers, who included both those currently practicing law in different parts of Syria, and those who have been forced to flee to neighbouring countries due to the conflict. Those interviewed come from all parts of Syria, representing all major ethnic and religious groups, as well as different ends of the political spectrum in the different areas. The assessment aimed to provide an overview of the administration of justice in all of Syria. It also examined several crosscutting issues facing the justice sector in the aftermath of the current conflict. ILAC found that in all parts of the country, Syrian judges and lawyers have continued to work to establish the rule of law in their communities. They are frequently the target of violent attacks simply because of their profession and commitment to the rule of law. On 13 March 2017, just days before this report was sent to the print, the Palace of Justice in Damascus and a nearby restaurant were targeted in a double bombing that killed over 30 persons – a grim reminder of the brutality often faced in Syria by those Syrians in the pursuit of justice. The breakdown in the government’s control over territory has resulted in differences in the execution of justice across the country. As a result, a major challenge facing Syria in the future will be how to reinstate a unified system of justice capable of upholding the rule of law and due process. ILAC has made two key findings that will be crucial in planning for this process: 1. Interviews with those from and working in non-government controlled areas revealed that virtually all armed groups involved in the conflict recognise, and in fact embrace the concept of courts or similar structures to settle disputes, provide justice (however defined), and handle routine administrative tasks; 2. Legal professionals in all of Syria share a pride in their profession and a commitment to professionalism in their respective role. Judges and lawyers living on either side of frontlines universally express their deep respect for colleagues on the other side, maintaining that they simply try to do their best to achieve fairness in an unfair system. 08 09 Report Syria 2017 ILAC Rule of Law Assessment Report These two factors are significant for the future of Syria and should be considered in any reconciliatory efforts between the parties to the conflict. The majority of people currently in Syria live in areas under the control by the Syrian government and the justice institutions. ILAC identified two parallel justice systems operating here. One is the regular court system, which handles all civil, criminal and personal status claims. The other is a web of exceptional courts without fixed procedure and with no clear limitations on jurisdiction. Both regular and exceptional courts generally fail to live up to international standards of independence and impartiality. However, there is a clear tendency of the government to move politically sensitive cases out of the regular court system to be heard before the exceptional courts, which may be seen as an indication that the regular courts have retained at least some measure of independence in relation to the executive and the security forces. If the government felt certain the case would reach its desired outcome whichever court was used, it is difficult to understand why moving cases to the separate system would be necessary. This notion is supported by judges who have been forced to leave Syria who claim that even though the regular courts where they served were not independent, they did retain a level of personal independence in their role as judges. Indeed, this indepen- dence was what forced many of them to flee after refusing to cooperate with the gov- ernment. These remaining aspirations to independence will be important to support and to sustain for a future post-conflict situation, when building an independent court system will be an urgent priority. Upholding judicial independence and due process is not only an obligation on states according to the right to a fair trial under international human rights law. The fact that there is a non-international armed conflict in Syria means that international humanitarian law is applicable. This imposes additional and complementary obliga- tions on the different parties engaged in the conflict, including obligations relevant to the operation of the system of justice. The exceptional courts are fundamentally flawed when it comes to implementing acceptable standards of independence and due process. This means that their continued use by Syria may violate the requirements under international humanitarian law if such courts pass sentences or carry out executions against protected persons under Common Article 3 to the Geneva Conventions of 1949. Without substantial reforms to bring the exceptional courts in line with what could be considered to be “regularly constituted” within the meaning of the Common Article 3 and customary international law, the government’s continued use of these courts would constitute a war crime. Non-state armed actors participating in a non-international armed conflict are equally bound by the requirements enshrined in Common Article 3, including fair trial guar- antees