As elsewhere in war-torn Syria, the collapse of established state institutions in the northern, largely Kurdish areas has left a gaping legal and judicial vacuum in its wake. In the cities of Qamishli and Hasakah in northeastern Syria, official courts are still operating in the enclaves controlled by the Syrian regime. However, while they continue to serve the local community in some ways, for example by producing official documents, there is no police force to carry out arrests on their behalf.
In the areas outside of these enclaves, law and order is upheld by the Asayish, a local volunteer police force that was established after the Syrian regime’s security apparatus withdrew in 2012. The self-proclaimed autonomous Kurdish government that emerged to fill the power vacuum has also set up its own so-called people’s courts to handle criminal cases. These courts are run by members affiliated with the ruling Democratic Union Party (PYD).
One of the limitations of these courts is the lack of trained prosecutors and judges, as almost no Kurds were accepted for these professions in the Syrian Baath system. There is a large pool of Kurdish defense attorneys available, but these individuals would need extensive training to assume new roles in a professional manner.
There is also the urgent issue of which law to apply. “The foundation is Syrian criminal law, but we use other sources when it suits us, like Swiss or German law. A justice secretariat coordinates which laws should be used,” says Mihemed Xelo, the spokesperson for the Asayish, outlining a pragmatic but legally dubious approach. “We also use customary law, but this may vary between different places and ethnic communities.”
Arbitration as an Alternative to Legal Process
In addition to the people’s courts, peace councils were set up underground even before the Syrian regime withdrew its forces from the Kurdish areas. These councils form part of the Democratic Society Movement (Tev-Dem), an umbrella for civil society organizations affiliated with the PYD. They deal largely with minor social and legal issues like divorce, unpaid debts, and land disputes, while more serious criminal cases are referred to the people’s courts. “The members of the peace councils have fought for the Kurdish cause for decades and sacrificed much,” says Mihemed Ebdilrehman, head of Tev-Dem in al-Malikiyah. “They are well-known and respected in the local community, so people listen to them.”
The most serious cases these councils deal with are blood feuds. “There is a risk that the victim’s family takes revenge even if there is a trial that results in conviction,” says Ebdilrehman. However, he gives several examples of how the peace councils have brought an end to a vicious cycle of revenge killings. After numerous meetings, the deals commonly include monetary compensation from one family to another.
A Framework for Pluralism or Hegemony?
While it is surely a good thing that blood feuds and other disputes are being settled, it could be problematic that the boundaries between party, civil society, and state structures have blurred. “The peace councils and people’s courts leave judicial power in the hands of undefined, party-dependent bodies made up of laypeople,” says Jian Badrakhan, a representative of the German-based Kurdish NGO Yasa, which promotes human rights through legal work. remain
A related issue is that different official bodies appear to be only nominally independent from one another. “The division of power between a legislative, executive, and judicial branch is essential for any modern state system, but in Rojava [Syrian Kurdistan] this is not guaranteed,” says Badrakhan. “The development of a democratic system is at risk if one party decides everything.”
Yasa’s legal experts produced a draft constitution for the Syrian Kurdish areas last year, but it was not considered by the PYD. Instead, the so-called social contract became the ultimate foundation of legal and political decisionmaking. In many ways, the document reads as a typical democratic constitution, but there are some problematic passages. For example, article 24 guarantees freedom of opinion, but only as long as it does not “endanger civil peace” or “aim at exclusion and hegemony.”
By the sound of it, these limitations could be interpreted in a fairly wide-reaching manner. The PYD’s track record gives some cause for concern. In a recent report, Reporters Without Borders found that the PYD and its affiliates arrest, threaten, or even abduct journalists and media personnel whom they perceive as too critical.
In late April 2014, the interim legislative assembly for the Jazeera Canton, a local government that was set up by the PYD, presented a political parties law in preparation for the promised elections. However, the law presents a dilemma for opposition parties, as registration requires recognition of the PYD-led interim government. Instead of laying the ground for democracy, the law could thus be a step toward legalizing infringements on the activities of political opponents.
In a contemporary Syrian context, the attempt to establish a legal system based on secularism, equality, and human rights is quite remarkable. Many flaws may be forgiven considering the difficulties facing laypeople improvising in a wartime environment.
The question remains whether the PYD will continue to dominate the new structures in the largely Kurdish areas indirectly or whether there is a genuine ambition to move in the direction of pluralism and separation of powers. Only time will tell.
Carl Drott is a Swedish freelance journalist. Read his previous reports for Syria in Crisis:
Syriac-Kurdish Cooperation in Northeast Syria
A Christian Militia Splits in Qamishli
Christian Militia Politics in Qamishli
Christians Under Pressure in Qamishli