The Anti-Terror Trial System in NES
Interview with Sîpan Ahmed (name changed), prosecutor at the People’s Defense Court of Qamishlo. The People’s Defense Courts are in charge of trying crimes related to terrorism – mostly, though not exclusively, related to ISIS combatants. Two courts exist, with the second one located in Kobanê. This interview was conducted in collaboration with the Hague-based International Center for Counter-Terrorism think tank. ICCT has published a parallel report on the prosecution of ISIS fighters in North & East Syria, which can be found here.
Could you explain the process of building-up the anti-terror court system within the judiciary?
When the Syrian revolution started, and the revolution in Rojava began, there were a lot of attacks from armed Islamist groups in the area. During the battles between them and the local defence forces [SDF], more and more of them were captured, so we saw the need for a legal framework to bring them to justice, and a law was written. This 20-2014 law lists the terrorist crimes and the sentences that correspond to each of them. Participation in these armed groups is also considered a crime. These groups include ISIS, Jahbat Al-Nusra, the Turkish-backed SNA factions (Hamza division, Suleiman Shah…) etc.
What are the typical crimes for which these people are being tried?
The crimes and sentences (that are applied) are the following:
- civilian membership in a terrorist organization: according to the role played in the organization, one year to two years prison sentence.
- armed membership: if they fought against the People’s Defense Forces of the region, the sentence would usually be between 5 and 10 years. If there is proof that he killed an SDF soldier we give a perpetual sentence.
- organized leadership: People are also being tried for indirect responsibility for the deaths of people, for example by giving execution orders, they can get 20 years to life. But, of course, we need evidence that this person is the one who gave the orders. Everything depends on the evidence produced.
- rape: 15 to 20 years
- human trafficking (related mostly to Yazidi enslavement): 10 to 20 years
- fighting against SDF forces: 10 to 20 years
- murder: 15 years to life, according to the numbers and nature of the killings
These are the main crimes we are confronted with. Anyway, in most of the cases, the defendants have been responsible for multiple crimes, so it is up to the court to examine the gravity of these crimes.
What is the normal length of the life sentence?
This is something that is not written clearly in the 20-2014 law and that is yet to be determined, if it would be 25 years, 30 years… The justice council has yet to publish a new law that will solve a lot of issues that were not as clear as they could have been in the previous law.
What is the investigation process and which kind of evidence is being used before the court?
This is a process that is led first and foremost by the Internal Security Forces (Asayish), who search the possessions of the prisoner. In most cases, there is a lot of evidence already present in their phones. Because they consider their actions legitimate and they are proud of them, they usually film them, so there are videos of killings, rapes, decapitations, etc. Sometimes, witnesses come to us to report on some crimes they know the accused have committed. Often, it will be another prisoner that will report his fellow fighters and give us detailed accounts of their actions. In this case, we write down their statement and use it as evidence. Lots of accused admit their crimes themselves, especially when the evidence is conclusive. The external witnesses are coming to the tribunal themselves and in front of the court, but not as much as we would like.[1]
The Internal Security Forces take care of the first phase of this process of evidence-gathering, which usually takes 6 months to complete, after which they then surrender a dossier to the prosecution. The prosecutors are also conducting an investigation on the basis of this dossier if they see that the evidence and information is not conclusive. They also prepare the legal file which outlines the particular articles of the 20-2014 law upon which the accused will be prosecuted. And then the trial itself begins.
Do the accused benefit of any sentence reduction if they give out information to the prosecution?
They do, especially if they offer this information beforehand, for example, in the case of bombings or targeted assassinations. In this case, the person wouldn’t go to jail at all.
If the crimes have been committed but they surrender themselves to the security forces and give out information, their sentence will be reduced. We can give up to 3 years of sentence reduction.
It depends on whether the information is passed on before or after the crime. There is another case, that of members of ISIS who were participating in the organization for several years, who surrender to the Security Forces or SDF. In this case, their sentence can be reduced up to 2 years. All of this is written in the law.
Concerning the gathering of evidence related especially to the kidnapping and enslavement of Yazidi people and women,[2] how do you proceed?
On this side, we have to say that there is a weakness. Most of them, the ones that have been liberated from ISIS, passed through the Yazidi house [in Amudê, Jazeera region] and have then been reunited with their families in Shengal [Sinjar], and there has been no official evidence-gathering from them. But it is also a really important subject in relation to trying foreign ISIS suspects. We asked for such an investigation, and some people went to Shengal in order to conduct such research, but it was not made according to the standards and we are waiting for an answer from the authorities on this question. We know that the testimonies of these women are really important: they shared their daily lives, were victims of so much by themselves but also have been witness to other kinds of crimes. It’s also really important for accountability.
Do you try people or envisage to try people for genocide?
Yes, it’s something that could be used for the Shengal attacks.
But now it’s not included in our laws, but it should be included in a new law that is now being written, because it’s also something that is being tried in the ICC, and so according to their own definitions we could also pronounce sentences related to these crimes. But, of course, it cannot be retroactive. Some of the people we have tried we know have been in Shengal.
How many people did you try until now? And how many women are among them?
About 8000 Syrian nationals. We didn’t try any Iraqis or third-country nationals. There were very few women among the individuals we tried, less than 1%.
Can you walk us through the trial process, from the arrest until the conviction?
Once the Internal Security Forces have prepared the file, they hand it over to the prosecution. Then, the prosecution prepares the file for 2 to 3 months, completes what needs to be completed, and gathers more evidence if needed. Then, they give it to the court, and the trial begins. The trial itself can also last 3 or 4 months, depending on each case. It can sometimes last 6 months to a year. Of course, it’s not a daily trial, it’s only a handful of sessions. The first time, they come to present the case in front of the court. The second time, the defendant and his lawyer have the opportunity to defend themselves, for example, if they present testimonies that show that they didn’t commit such crimes. This might take between 15 days and one month, when defendants can still call their families, call witnesses, and gather evidence for their defence. After this, the prosecutor presents its evidence. Finally, the court begins its decision-making process.
What about the right of defense?
The accused have a right to get a lawyer. But in practice, we have some difficulties finding lawyers, because they don’t easily accept to come to defend people who belonged to ISIS, who committed massacres and such crimes. This right is always clearly stipulated to the defendant, and those who want a lawyer can hire one.
Is there any kind of public defender system?
This is something that has been discussed in the civil courts, and a new law has been written regarding this question. For example, if someone is too poor to hire a lawyer. In this case, the AANES would provide the necessary funds. The law has been adopted and is starting to be implemented.
Are there any civilians participating in the trial, as a jury?
In our civil law, for civil courts, this participation exists on paper but until now we haven’t yet put this system into practice for the People’s Defence Courts. It’s also something that is not existing in Syrian law.
And there are several judges, right?
Yes, it’s 3 judges for every trial, with an effort made for gender parity, so always two men and one woman or two women and one man. The Qamishlo People’s Defence Court employs 14 judges. 8 prosecutors (among them 2 women), 3 judges for the first court (one woman) and 3 judges for the appeal (one woman). In total, we are 25 persons working here in the tribunal. We have a lot of work; it can be exhausting.
What is the educational system for judges? Are there enough working at the Courts?
We are really few according to the number of prisoners.
When people (judges) finish their law degrees, they go to an academy for 6 months. And then they can become judges. All the judges and prosecutor working here had been studying law in regime universities but now that a department of law has been opened in the Rojava University, they can also study there.
Could you become a judge under the Syrian government?
No, it was really difficult. For example, I studied law, I finished it in the nineties, and I filed the request for becoming a judge three times, and it was refused three times. They were not accepting Kurds. It was because of political reasons. So I became lawyer.
What about the appeals process?
This second court will independently read the dossier and evaluate if the decision of the first court was right or not. The defendant can present new evidence or insist on aspects that were not considered by the first trial. The prosecution has the same rights. There is no second court of appeals. The prosecution or the defendant can both go to appeals. Because, as prosecutors, we protect the rights of society, we can also make the case that the sentence is too low. The defendants often go to appeals, in about 60% of the cases. And when one defendant goes to appeal, the prosecution has to follow suit – it’s like this in our system.
What about the jail conditions and rights of visitation?
There are several jails. During the investigation process, the accused are kept in special facilities that are guarded by Internal Security Forces. During the trial, they are kept in a jail here [in the same location than the People’s Defense Court building]. Then, when they are convicted, they are going to another prison. Here, the prison administration is a civilian authority, but the security is provided by the Internal Security Forces.
Do you have any prospects to try the foreign fighters?
This is something that is more related to the External Relations office. If we want to give them to their countries or to try them here. But from my point of view, they should be tried here, because it’s here, on this land, that they committed their crimes; it’s the people of this land who have suffered at their hands, whose children have been killed. All these people are here, and they should have the right to see the perpetrators held accountable here.
What is the biggest difference you have noticed between the AANES courts and the ones of the Syrian government time?
During the rule of the Syrian government, it was really rigid, one could only follow written laws. But we weigh ethical principles more heavily. Of course, we also follow the law, but we are more humane. During the regime era, we couldn’t get a hold of people that had been arrested sometimes for years, as lawyers. They wouldn’t say where they were detained. Especially in the case of political prisoners. We wouldn’t get any notice or be told in which prisons they were being held. In our system there is nothing like this. Even if it’s really difficult, we try to keep everything transparent for the people. We say, “this person has been arrested,” we call the family and say “your son is in our detention facility, facing these and these charges,” and we explain the judicial process that they will face. Another point is that there are always several judges. We don’t think that such important questions should be in the hands of only one person. So the judges can debate together, and as long as two of them agree, the sentence can be pronounced. The one that doesn’t agree with them will not sign the sentence and will express their position to the final verdict audience.
What are the visitation rights for the defendants?
They exist, but it’s quite difficult during the initial investigation by the Internal Security Forces. Then, during the trial process and after the condemnation, they have full visitation rights, though only for the family. Here, it’s twice a month, for half an hour, with the presence of a guard. The family can bring them items, but they mostly don’t ask for food, because the food they receive here is good.
And what are the conditions in the jail?
They are in collective cells of 20 to 25 persons. They have the right to go to hospital if they get sick or need medical treatment. We face difficulties because there are so many prisoners, but there are so few facilities. A lot of times, the AANES has to pronounce amnesties in order to relieve overcrowding in the jails. The only amnesties that were pronounced for terror-related prisoners were in 2016 and then on the 10th of October 2020, when about 600 of them were released. More amnesties have been pronounced for convicted civilians.
What are the main challenges that you are facing, in order to bring the people in front of the court?
The first one is the question of the evidence. As I said, in the beginning, it was the war, there were a lot of prisoners, it was quite chaotic. It’s hard to gather evidence, especially because some territory was still in the hands of ISIS.
Secondly, the overcrowding of our jails and prisons.
As a third point we could say the technical issue, knowing that a lot of evidence is recorded on technological devices, such as smartphones. It is hard to search these devices; our possibilities are limited in this regard.
And the Coalition didn’t provide any help for this?
For the prisons, maybe, we have heard about this on occasion, but for us, as the judiciary, no.
How is your relationship with the AANES?
We are related to the Justice Council, which are covering most of our needs, according to their own budget and possibilities. Anytime they can help us, they do. Whether it be for staff, for electronic material, etc.
Editor’s Note:
[1] The non-attendance of witnesses can be explained by the transportation difficulties in the region and the fact that most crimes would have been committed in some regions hard to access of even outside of the country (Iraq).
[2] Knowing that the Yazidi people were attacked during Shengal massacre of 2014 in Iraq.
