Violence and legal responsibility:

the construction of criminal narratives in contemporary Syria

Concepts of collective and individual legal responsibility in the Islamic world,

Danish Institute in Damascus, 6-7 May 2005.

Zouhair Ghazzal

Loyola University Chicago

zghazza@luc.edu

zouhairghazzal.com

ABSTRACT—In many rural and semi-urban communities of the eastern Mediterranean, violence may constitute a means, both political and economic, for social cohesion among agnatically organized groups. It may simultaneously be a means to ensure male domination through the perpetration of values along honor and shame codes. The advent of the modern authoritarian nation-state, after centuries of Ottoman decentralized feudalism, has forced such communities to articulate and legitimize their violence through narratives in order to account for what state institutions might classify as “criminal behavior.” In effect, the sudden advent of the modern nation-state implies, above all, that the state has the legitimate right to monopolize violence, a precept which often leads to the criminalization of pre-state or inter-kin violence. Thus, for instance, a criminal file typically narrates violence from the viewpoint of actors unevenly distributed along the social spectrum: policemen, prosecutors, judges, plaintiffs and defendants, witnesses, doctors and psychiatrists. In all such narrations, the attempt is either to legitimize or delegitimize violence, hence to criminalize it in case of any wrongdoing. The same incident is thus documented from different standpoints—even though, in the final analysis, the one adopted by the courts is the one which prevails—creating various linguistic constructions of collective and individual legal responsibility.

Based on Syrian criminal cases of the last couple decades, this paper would like to explore collective and individual legal responsibility from narratives which have been generated by actors in the wake of violent acts, and upon criminal investigations by the state authorities. Once acts of violence have been labeled as “criminal” by the state, they have to be accounted for by social actors for the sake of one’s own community and the other as well (the judicial authorities and the nation as-a-whole). A new form of responsibility may henceforth emerge.

FIRST DRAFT

This paper explores criminal law in contemporary Syria in conjunction with constructs of the notion of legal responsibility, which necessarily relates to such concepts as the person, individual, subject, and actor, all of which are derived from western history. In Ottoman Greater Syria in the second Tanzimat era (1856-76), as soon as new civil and penal codes were introduced, an epistemological shift occurred in both theory and practice. In effect, the nineteenth-century fin-de-siècle was not much different from earlier Ottoman periods when it came to crimes and penal matters. In the absence of a Public Prosecution Office, it was up to the private parties to request, upon a homicidal crime, for a sharia judge to handle the matter. In most instances, the sharia judge would not request an investigation by an official authority (cities like Aleppo, Damascus, and Beirut, did not even have their own police force), but would rather rely upon the allegations of the participants. Moreover, and even though on rare occasions the judge would request the punishment of the accused (such verdicts were generally issued by the Tanzimat regional councils rather than by a sharia judge), the bulk of criminal cases wrested with the dubious issue of blood money (diya). Such cases were not, however, overtly adjudicated as criminal cases per se open for investigation, but rather as procedural fictions whereby it would be established that the victim died as an outcome of a wound inflicted by a sharp metallic object, meaning that the crime was premeditated (‘amd), thus clearing the way for the next-of-kin—the would-be inheritors—to proceed with the victim’s succession (tarika). But even though the sharia language of qasd versus ‘amd implied that such notions as “intention” and “responsibility”—the assailant manifested either a premeditated or deliberate intent to kill his victim, or else he intended no harm, and mistakenly killed him—are pivotal to understanding the actor’s motivations, their implementation was nevertheless only formal, as the arguments invariably shifted towards more “objective” criteria of assessment. In effect, the would-be “investigation” amounted to no more than establishing the nature of the tool of the killing (alat al-qatl). If the tool was, say, a wooden object, the “intention” would in all probability be classified as a deliberate act (qasd) but with no premeditation to kill (‘amd), as only metallic objects with sharp contours would irrefutably prove that there was a planned intention to slain the victim. Needless to say, the sole focus on the tool of the crime brackets off the whole notion of intention-cum-responsibility, as we understand it today, in conjunction with modern post-Ottoman codes.

But the drafting and implementation of western inspired codes is one thing, and the proper understanding of their underpinning juridical philosophy is quite another matter.[1] For one thing, the main purpose of the Ottoman Tanzimat, and in particular their second installment (1856-76), which initiated the drafting of modern Napoleonic codes, was to open up the Empire to Mediterranean and international trades and policies. That led to the passing of adjudication—except for personal status—from the sharia courts to the newly instituted nizami courts, whose archives scholars have regrettably not paid much attention to yet. The presence of a mandatory power in Syria and Lebanon in the aftermath of the dismemberment of the Ottoman Empire has definitely refined and deepened the implementation of the civil law tribunals instituted by the Ottomans in the 1870s, even though the non-availability of the judicial archival material for that period (1920-47) makes it impossible to assess the practices of these courts. Suffice to note for our purposes here that the French mandate kept active all along the division instituted by the late Ottomans between the sharia and the civil state-controlled courts, and that, with the exception of a new land law in 1930 that regulated ownership in the aftermath of the demise of the iltizam system, no major laws were drafted. Only when Syria received its independence did the major civil and penal modern codes see light, specifically in 1949 during the brief dictatorship of Husni al-Za‘im, in what was described as a “legislative coup d’état.”

The question that is of concern to us in relation to our topic of legal responsibility could be formulated as follows: considering that legal responsibility implies in modern civil and penal codes the existence of an active agent whose legal rights are protected, how is such responsibility represented and practiced in the daily labor of the courts themselves? As it turns out, the codes themselves, having been imported from other cultures, prove insufficient to describe representations of legal responsibility. In other words, we must move beyond the formalities of codes into the practices of the courts themselves. This is best done by picking up individual cases and looking at how they are constructed as textual artifacts. We would therefore look at how actors use the rules of law rather than how they simply apply them (or fail to do so). We in effect consider that there is a big gap between what the rules of law say and what actors do with them: it is, indeed, in between the saying and doing that action—hence the actor’s responsibility—unfolds.

To expound upon my method, I would like to discuss in the context of this paper two cases drawn from the Syrian contemporary criminal courts, and see how a notion like legal responsibility manifests itself in the practices of these courts. For a country like Syria such an experience does not proceed without the usual logistical and legal problems. To begin, there are currently no procedures for researchers (and other individuals, besides judges and lawyers) to have access to court cases, which de facto personalizes the whole operation of accessing documents, while drastically limiting their availability (the absence of reading rooms and adequate libraries in courthouses adds additional hassles). More importantly, considering that civil and penal cases are only archived in dedicated warehouses for an average period of 15 to 20 years, after which they are destroyed (itlaf), an historical investigation into the courts’ proceedings is thus to be limited to the last couple decades. In effect, since only copies of the rulings are kept once the files are destroyed after their grace period is over, the access to and choice of individual cases cannot proceed systematically, but rather hangs on the goodwill and benevolence of court staff, or of lawyers who are willing to share some of their material. Such constraining factors, rather than limit the scope of our research, should make us even more alert at the construction of cases and the use of rules by actors.

That said, there are several brands of criminal cases. Over half of the cases that pass to the Jinayat each year deal with major or petty thefts, while the other half is divided between homicides, drug use and trafficking, rape and sexual indecency, economic security (amn iqtisadi), honor crimes where women are usually the sole target, and honor crimes among men, which are very common in rural areas, and which usually involve “collective disputes (mushajara jama‘iyya)” and inter-communal feuds that could span over several generations. Rather than come up with general rules and observations, I will focus instead on how the issue of responsibility concretely imposes itself in few criminal instances, among them in crimes where, for instance, the defense puts forward the claim that the accused is either “insane” or “abnormal,” pushing the court to revise its ruling in case it approves such claims. Another instance where responsibility comes to the forefront is in so-called honor crimes when the assailant claims that he acted in retaliation for a slain kin member of his. Even though prima facie evidence tends to lean towards deliberate intent, if not a carefully planned crime, the participants, in conjunction with the official authorities, manage to diminish the crime to an act that was intended (qasd) though not deliberately planned. It is at this stage that discussions regarding intentionality and responsibility begin to surface, albeit clumsily, and get further exacerbated by other related issues such as the direct or indirect involvement of minors or other clan members (in particular women, with the mother-as-instigator), which might have “instigated” and encouraged from a distance. At times the number of participants could be so large (e.g. cases with 80 or so accused) that the courts could only label responsibility as one where “the independent actor remains unknown (jahhalat al-fi‘l al-mustaqill).”

All such instances point to the difficulties that the judiciary encounters in societies where contractual relations are not necessarily established among abstract and atomized individuals endowed with legal rights of their own. If in effect modern civil codes assume that the state is the agency which not only has the sole monopoly over the legitimate use of violence (Weber), but also establishes the rule of law, a role it has gradually taken from the medieval feudal Church, then the counterpart is a civil society where individuals act as subjects of the state, hence looked upon as citizens with political and legal rights. But in societies where modern codes have been transplanted, and where personal and kin relations predominate—that is, where customary and informal norms outpace their official counterparts—then how is responsibility to be legally determined? When examining individual cases we will have to observe how intentionality and responsibility are constructed, and why they may or may not be crucial as the investigation unfolds and the case reaches its climax with the verdict.

Is he legally competent?

Questioning whether the accused is sui juris amounts to recovering his ahliyya: is he capable to stand trial and assume his legal responsibility? Or is he ‘adim al-ahliyya, and hence legally incompetent? As incompetence amounts in most instances to seeking medical expertise, usually at the request of the defense council, the courts soon find themselves embroiled in a medical language and in the dubious task of translating a medical vocabulary into a legal one. Upon closer examination, however, the medical expertise itself soon becomes a matter of dispute, as the competence of various committees is subject to debates. Let us consider a case where medical expertise was needed.

On 3 August 1979 an old man who was praying in a small mosque in Hama was stabbed with a knife by a perpetrator who allegedly came from the outside and who left the knife and ran away after assailing his victim. The assailant managed to hide in an x-ray room of a nearby hospital, having been followed by a small group of people who had managed to track him. He then allegedly threatened to blow the place with gas, but some managed to enter the room and got hold of him. The victim was transferred by helicopter to a hospital in Damascus, but died soon afterwards. When people in Hama knew of his death, they mobbed and burned the assailant’s family home, which was close to the murder scene.[2]

On 14 October 1979 the referral judge (qadi al-ihala) in Hama issued his report, which in the Syrian penal law tradition constitutes the first preliminary synthesis of the case prior to its transfer to the higher criminal court (Jinayat). The judge recommended not only to punish the assailant based on article 535 of the penal code, but also accused his father of instigation (tahrid) of premeditated murder (‘amd) based on article 216 of the code. In fear of assailments against the accused and his family, his lawyer requested that the court hearings take place outside Hama, and they were effectively transferred to the first criminal court in Damascus. It was during the Damascus court hearings that the defense requested that its client be transferred to a hospital for medical evaluation on the basis that he was caught with “madness” (musab bi-l-junun), which the court agreed upon. Over a one-year period in 1980 and 1981 a number of doctors visited the accused in his hospital room, and after conducting a series of tests, drafted a report to the court, signed by the hospital’s director, and which claimed that “the perpetrator is suffering from schizophrenia (fisam) and he is not responsible (ghayr mas’ul) of his actions, and he constitutes a danger to himself and public safety (al-salama al-‘amma).”

On the victim’s side, the agent representing the “plaintiff’s personal legal right” (wakil jihat al-iddi‘a’ al-shakhsi), which stands in parallel to the public authority of the Prosecution Office, complained that the diagnosis was not conducted under the court’s supervision, which prompted the court to appoint a three-member committee to re-diagnose the defendant. The medical committee issued its report on November 1981.

[MR1] Upon diagnosing the accused, and after reading the medical reports and the judicial dossier, it turned out that from his general attire[3] (mazhar-ahu al-‘amm) he was under the effect of major calming drugs. He thus suffered from a trembling in all four parts [of his body] as an effect of the medications. It was also noticed, upon his interrogation, that he talked to himself, without concentration, no reaction whatsoever, and was indifferent to the world around him. Among the symptoms that attracted our attention: total negativity, indifference, and lack of reaction, even though he admitted the crime attributed to him. He denied that he was afflicted with madness (junun), and when asked about his illness, he replied: it’s a mere question of nerves (a‘sab). Based on what was stated, and based on the total negativity, indifference, and lack of reaction in the patient, we have unanimously decided that he is afflicted with schizophrenia (infisam), and that his affliction is old enough, dating prior to 1979, and that he committed his crime under the effect of the sharp seizures that regularly hit him. For those reasons he cannot be held responsible for his actions, and he therefore constitutes a danger on public safety, and needs to be treated in a mental institution. That’s our expertise.

In December 1981 the plaintiff’s party, acting on its own behalf, that is independently of the Public Prosecution Office, reprimanded the medical report, requesting its revision by a five-member committee:

1. The accused should not be diagnosed when under medication.
2. The experts did not explain why they pushed back the illness prior to 1979, the date of the crime.
3. The experts failed to explain why they think that the crime was committed under the effect of one of the illness’ sharp strokes (hajamat al-marad al-hada).
4. The experts failed to describe the illness’ symptoms (zawahir al-marad).
5. The experts did not examine the accused’s mind objectively to check whether he suffers from an ethical mental incapacity (qusur ‘aqli khuluqi), as it needs to be known if such an incapacity does exist, whether the accused becomes more malleable and irresponsible, or whether his schizophrenic illness makes him more vulnerable to the manipulation of others.
6. The doctors have based their assessment on what was already stated in the case’s folder, rather than placing the accused under surveillance for a period of time without subjecting him to medicaments.

As the court agreed that it needs to determine with more accuracy whether the accused the day he committed his crime was at that particular moment inflicted with a “mental incapacity” (naqs ‘aqli), it set an appointment on 23 November 1983 for a five-member committee[4] to assess the accused under the supervision of a court’s consultant. When the accused was brought to the consultant’s office in the presence of the medical committee, he was reexamined once more, prior to the committee drafting its report.

[MR2] When the accused was examined, and questions were addressed to him by the five-member committee, it turned out that he possessed at the time his normal mental capacities in terms of judgment, concentration, and deduction. His thoughts proceeded logically and gradually, and he answered the questions in all clarity after understanding them, while his answers came in harmony with the questions. There is therefore no clear indication that he suffers from any mental deficiency that would either incapacitate or limit his responsibility. After going through his previous life story and questioning him on matters relating to periods before and after the incident, it turned out that his state of mind was perfectly sane (salim), and we were unable to come up with any conclusion that would point to any severe mental or psychic illness from which the possibility of committing any crime would be imputed, even though his angered type of personality may have contributed to the crime, but that does not waver his responsibility. Moreover, he was not [at the moment of our examination] under the effect of any drug, medication, or alcoholic beverages. That was the overall opinion of the examining committee, with the exception of doctor M who considered the patient in a quiet (sakin) state, but he was ill when he committed his crime, and he still is, which means that he was not fully responsible of his crime, and that his responsibility does not add to a mere 70 percent. That’s our expertise.

It was now the defense’s council turn to criticize the medical report, requesting another seven-member examination in a hospital, but this time in light of the documents of the case, a request that the court approved, and the defendant was examined for the fourth time in three years, on 11 April 1984, in the presence of the same court’s consultant.

[MR3] After interrogating and examining the accused, and after consulting the documents of the case, we confirm that the accused is now in a borderline state (hala hududiyya) due to his sick and immature personality, and through which he might be subject to any perturbation from the outside world. He is therefore considered to be only partially responsible for his actions, and is considered a danger to himself and public safety, and therefore in need to be treated in a psychiatric hospital. But even though the patient’s state of mind has long been afflicted by his mental illness, several years prior to the crime, he nevertheless bears a 70 percent responsibility for all what he did from the day of the crime until now. This means that the level of irresponsibility (‘adam al-mas’uliyya) attributed to him does not exceed the 30 percent, and for this very reason he should be placed in a mental hospital so that his symptoms do not develop any further, creating greater risks for himself and society at large. That was the opinion of the majority of five of the doctors in the committee…as to doctor K [who dissented] he clarified that the accused is now in a borderline state, and his responsibility for his actions is therefore limited, but it would nevertheless be unscientific to determine a percentage for what his responsibility really is.

On May 1984 the plaintiff’s party presented a memo to the court pointing out that the seven-member committee’s statement that the defendant’s responsibility was limited and that his actions were subject to outside effects point to the fact that his father was the real instigator, pushing his son and coaching him to kill the victim, which means that the father is as much responsible as the son for the crime.

A criminal hand killed a human being…but not any human being…a man who by his killing, science, justice, goodness and morality, were also assassinated. A man who lived 80 years, and in him the gestures and manners of the great Prophet manifested themselves, spreading good manners and happiness among people. But we are not seeking here to list the innumerable qualities of this good man, nor do we want to seek revenge from the culprits, as much as we want to stop harm from society by cutting its corrupt members. That’s what God implied when he said that “there’s life in punishment.” Life here means the life of society by undermining corruption and its effects, as any factors of corruption is even more dangerous than the criminals themselves, confirming what God has stated: “Who kills a soul with another soul, corruption will come to earth, as if all people were killed.”

The plaintiff’s party concluded that both the killer and his father should be subject to the death penalty. For its part the criminal court issued its final ruling on 15 October 1984:

1. The accused was found guilty of deliberate murder (‘amd) and should be subject to the death penalty based on article 535 of the penal code.[5] His punishment is, however, reduced to three years with hard labor, based on articles 232 and 241 of the penal code, and taking into consideration the medical reports. Moreover, the punishment should be executed as soon as the accused leaves hospital, and he is forbidden to reside in Hama for 10 years.
2. The second accused, the father, was found non-guilty for instigating murder, since no sufficient evidence was available.
3. The two accused are penalized for SP200,000 ($4,000) in compensation for the plaintiff’s party.

As both parties appealed the verdict, the higher cassation court (Naqd) in Damascus took hold of the case and issued its ruling on December 1985. It decided to formally (shakl-an) revoke the defendants’ appeal on the basis that their representative did not carry an official authorization to represent his clients. It also revoked the plaintiff’s appeal for re-assessing the punishment on the basis that the Public Prosecution Office did not appeal the court’s ruling, thus leaving the plaintiff’s party appealing with their personal right, which renders the ruling valid from a criminal point of view. (In contrast, defendants have the right to appeal their punishments.) As to the other matters brought up by the plaintiff’s party, the cassation court decided:

1. The criminal court was lost in contradictory statements when it punished the defendant with the death penalty and reduced his punishment to three years with hard labor: the death penalty implies a deliberate planning, while the three-year punishment was based on the doctors’ evaluation of the accused and his partial responsibility for his troubled actions.
2. The second accused was vindicated without a thorough discussion of his role (or lack thereof) in the crime.
3. The court did not explain how it came up with the value of cash compensation.
4. Even though the penal code does not recognize blood money compensation (diya) as such, it is still looked upon as a strong guiding principle (mabda’) when assessing material compensations, which judges ought to consider (rule 1049 of the criminal encyclopedia).

With the cassation ruling behind, and with the prosecution out of sight, the case now centered on personal civil rights and material compensation. The plaintiff’s side took hold of the cassation’s opinion that the diya ought to be looked upon seriously since it is de facto part of customary law, arguing that sharia law assesses the diya of a premeditated killing (‘amd) in terms of 100 female camels, among them 40 should be pregnant (Ibn Rushd, Bidayat al-mujtahid, 2:402; al-Fiqh ‘ala al-madhahib al-arba‘a, 5:368). For their part, the defendants argued that the illegal burning of their home ought to be deducted from the compensation. When the criminal court revalued the compensation to SP400,000 ($8,000), taking this time into consideration the status of the victim, the defendants appealed the decision, adding to their previous claim of the cost of their burned home, the argument that the diya in sharia law should not only be paid by the culprits (which in this case meant the father on his own, since the son was diagnosed as mentally incapacitated), but also by the entire family and tribe (‘ashira).[6] When the court reassessed the compensation on April 1987 one more time, it brought it down to SP250,000, taking into consideration this time the victim’s old age (close to 100). Finally, when the defendant made a request to leave the hospital, a medical committee found on February 1989 that he still suffered from the same symptoms, and his request was thus denied.

Common understandings and misunderstandings

The case shows that the participants on both sides kept for years struggling with their common stock of knowledge in order to determine whether the accused (and his father) were legally responsible of the murder. As no one denied the occurrence of the murder, and the person who committed the act did not deny his act either, the case shifted towards the mental capacity of the accused, and to a lesser degree, towards the father’s responsibility (even though it remains unclear how the father became a secondary suspect). The general assumption behind every crime is that legal responsibility is causally linked to the act of the perpetrator; or, in other words, the incidence of responsibility is attributed to a human being (or a juristic person, state institution or corporation). In homicides legal responsibility is expressed in the general division between deliberately planned crimes (‘amd) which may be subject to the death penalty, and the intended crimes (qasd) which are subject to a lesser punishment. But as we shall see in our second case below, judges may stumble over how to determine the difference between premeditated and intended crimes (not to mention accidental crimes): participants do their best in constructing what they mean by a premeditated or intended crime while documenting and indexing various descriptions of the murder scene. It follows then that legal responsibility, which implies making someone legally responsible for an act (which might not have been performed by the actor himself), would be meaningless without the proper work of contextualization performed by the participants—which means, above all, describing what happened from various perspectives. In short, legal responsibility does not exist in the abstract, and becomes meaningful only when documented by the participants. In consequence, broad categories such as ‘amd or qasd achieve their concrete meaning in the process of documentation.

In our case here, the court stumbled over the issue whether the accused was mentally incapacitated. The criminal court was in effect reminded by the higher cassation court that once the agent is perceived as mentally incapacitated, it would then become meaningless to label his act as deliberately planned and executed (‘amd), which implies that once a person is incapacitated, he is de facto—if not de jure—not responsible. But then the central issue becomes, how to determine insanity? When the Syrian penal code states in a single proposition that “A person is exonerated from punishment if he was in a state of madness (yu‘fa mina al-‘iqab man kana fi halat al-junun)” (article 230), it leaves all possibilities open as to how “junun” ought to be diagnosed. Would, for instance, a medical approach to madness be satisfactory from a legal point of view? In order to reach the verdict “not guilty by reason of insanity,” the court requested from several medical committees (the last two fell under its supervision) to determine whether the accused was insane at the time of the murder, considering that a person was not criminally responsible for an act if he was insane at the time.

In the first medical report (MR1), between the unremarkable remarks on the patient’s “general attire” and the confidence of a statement like “we have unanimously decided,” are several general observations on a person that did not seem to react all too well with his environment: he talked to himself, was indifferent, lacked reaction, but nevertheless managed to admit the crime attributed to him. Such descriptions could easily be attributed to any “normal” person who does not feel at home with his environment. The medical report relies in effect on too much taken-for-granted common assumptions about “insanity,” which it does not even bother to clearly define and wrap up in a medical language. Being a committee of medical authority, approved by another legal authority, the committee, based on the authority that it carried, had no other purpose but to state the obvious: that something was wrong with the accused. But what exactly? Since no one seems to have been interested in the accused per se but only in whether he was legally incapacitated at the moment of the crime, the whole enterprise amounted to how to formulate the accused’s responsibility (or lack thereof) in a consensual language that would have been approved by the participants. As each one of the actors had his or her own interests and motivations, a viewpoint on what happened, the sanity or insanity of the accused, and whether he was responsible or legally incapacitated, a consensus had to come through from the common stock of knowledge that actors shared. Such a common stock of knowledge only becomes known, however, once the actors begin to index, document, and describe the crime scene in their own familiar language. It reveals itself, for instance, in the police reports, prosecution depositions, court hearings, and final ruling. As each utterance by the actors plays on a common understanding of the things and situations at hand, what is therefore left unsaid could constitute the main building blocks of a criminal case. For instance, since the only purpose of the first medical report was to establish that the defendant “cannot be held responsible for his actions,” the report could have been fully accredited were it not for the plaintiff’s party questioning precisely of what was unsaid in the report: the nature of the alleged schizophrenic behavior attributed to the defendant, the periods in which he might have carried such a mental illness, and, above all, whether at the moment of the crime, he did carry such an illness; and, finally, in case he did, does that make him legally irresponsible?

Harold Garfinkel famously stated that “the notion that we are dealing with an amount of shared agreement remains essentially incorrect.”[7] Besides the fact that with every utterance both speaker and hearer assume a common stock of knowledge that they do not directly refer to, and while the speaker utters his statements on the basis that the hearer will understand, the hearer may occasionally request that the speaker clarifies what he “meant” by something. As such meaning clarifications have no end, in real life situations therefore, the process of agreement does not in principle come to an end, as speaker and hearer could indefinitely exploit their mutual common knowledge and presumed misunderstandings (“What do you mean by this?” or “Are you sure we know what we’re talking about here?” are among the most common forms of speech that would interrupt a conversational exchange in order to reorient it). In a courtroom context, judges have the sole authority to put an end to the unfolding of a case, and hence to play with the notion that “enough evidence has been furnished” to come up with a verdict. What the participants therefore typically do under such strained conditions is to come up with strategies that would document the crime scene in ways that would be beneficial to their purposes and interests, hoping that they would receive accreditation from the court for what they had documented.

In our case here, once the court accepted the plaintiff’s appeal, which de facto implied that the first medical report proved unsatisfactory, another medical committee drafted a second report (MR2). In itself, the second report, even though it completely reversed the findings of the previous one, did not bring any new element of knowledge: the diagnoses in the first and second reports were so poor, and left so much taken-for-granted knowledge, that they could have been so easily swapped with one another while completely reversing their conclusions. Notice how in MR2 the emphasis has all of a sudden shifted to the accused’s “normal mental capacities,” which now made him fully responsible of all his acts, past and present: the accused was described as someone with good judgment, logical, concentrates well, and “sane.” The court had to push for a third medical report (MR3) to reach a compromise. In MR3 the accused was perceived as living in a “borderline state” with possible “perturbation[s] from the outside world.” The doctors, save for a single dissenting voice, were even able to quantify the accused’s responsibility: 70 percent.

One can deduce from such medical flip-flops that “anything goes” as long as the participants are satisfied, and as long as the court is able to reach a “borderline state” among the parties. A more thorough examination of all three reports reveals the following. (a) Both parties accepted beforehand the judgment of the medical authorities simply because there was no legal language that would have been able to assess the defendant’s state of mind. (b) A medical authority is assumed to be “scientific” and “impartial,” hence it would provide the participants with a “neutral” language. (c) The three reports, while implicitly claiming the impartiality of science, mostly played on matters that the participants understood but were left unmentioned, in particular the crucial issue as to how the doctors were able to determine that the accused was “sane” or “insane,” responsible” or “irresponsible.” (d) Whenever one of the parties felt dissatisfied with the medical report, it would request more documentary evidence for what was left unsaid. The documentary evidence kept shifting between the purely medical and the legal history of the case. (e) All three medical committees kept their language specifically vague, shifting their analysis and conclusions in such a way only to satisfy the party of appeal. (f) As each party waited for something more to be said, each one played the game of appealing over what was left vague and unsaid, until something more satisfactory came up. (g) In principle the game between the two parties could have gone forever, as it was arbitrarily cut short by the court’s decision to proceed on its own with the case.

As it was difficult for all three main issues—the defendant’s “insanity,” the father’s presumed “responsibility,” and the cash compensation—to come up with a neutrally “decisive” language, which would have been approved by all participants, the actors documented the crime incident by means of extra-legal and biographical events. Thus, when the two accused were summoned to compensate the plaintiff’s party for SP200,000, without, however, providing any rationale for the assessment of the compensation, it was the cassation court that bailed the lower criminal court its way out: by giving customary practices—that is blood money (diya)—their due course, even though there is no explicit clause in the post-sharia and post-Ottoman modern penal code for doing so. In similar vein, in all three reports the events regarding the alleged defendant’s insanity were specifically vague. The depicted events thus left open the issue of documenting the defendant’s insanity by the participants themselves: when, for instance, the defendant’s family home was burned immediately after the crime, there was a presumption that the accused—due to a presumed mental incapacity—could not have acted on his own, hence his father must have been the instigator.

Let us imagine for a moment a situation where the medical committees would have acted more professionally: longer examinations of the patient, a better use of the medical findings (statistics, charts and graphs), comparisons with other medical cases (local and regional), and reports that would have integrated such findings with one another (personal observations of the patient integrated to findings in the medical literature at large). Let us also imagine that police and judicial authorities would have proceeded more thoroughly in collecting evidence, interrogating witnesses, and conducting the hearings, not to mention the drafting of the rulings, would have such radical changes forced the participants to adopt alternative strategies? Would a better professional attitude of both medical and legal authorities have created a more “neutral” territory for the handling such cases? (One route that, for instance, neither medical nor judicial authorities fully contemplated regarding a presumably mentally disordered person was that person’s ability to understand, in particular the ability to understand specifics: signing a contract, inheriting, or committing a crime, each of which implies a different kind of understanding and responsibility.) What is certain is the more the judiciary (and related authorities such as the medical) would opt for procedures and languages situated outside the common stock of knowledge (that is, the customary norms), the more they would become autonomous in the sense of distancing themselves from common practices and norms. The importance of such a judicial autonomy is that it would enable individuals, groups, and institutions to bypass some of their normative values in order to abide by state legislated rules of law. In other words, the more the judicial and medical authorities hide behind their professional jargons, which must lie outside the common sense norms, the greater the opportunities provided for actors to come up with alternative strategies of societal integration. The assumption here is that state controlled rules of law would have as their main purpose a better cohesiveness of society that would not limit itself to common religious, ethnic, tribal or regional norms.[8] But whatever the degree of autonomy of state institutions and their judiciary, for purposes of conducting their everyday affairs persons will always have to index and document their being-in-the-world with their common stock of knowledge even in societies with greater institutional powers (political, economic and scientific). What is therefore “seen but unnoticed” (Garfinkel) will always constitute the basis for daily conversations whose taken-for-granted undertones and routinized symbolic interactions prove necessary to minimize interference.

Execution-style killings

Before I elaborate further on the ideas proposed in the previous section, I would like to consider another homicidal case, which even though very different in its events and treatment from the previous one, brings additional valuable material to our theme of legal responsibility. The Syrian countryside and some of the slum neighborhoods around the main cities, dominated mostly by peasant families and tribes, routinely witness a rash of honor killings.[9] Whenever a woman is the target, and once the assailant voluntarily gives himself to the police right after the killing, the crime is generally classified as “a killing for honorable purposes (qatl bi-dafi‘ sharif),” which grants the defendant a reduced punishment of a year to a year-and-a-half. There is, however, a fairly large number of honor killings among men, which in the absence of statistics is hard to accurately nail down, and which the criminal courts do not label as killings for an honorable purpose. Judges have, however, often handed out lower sentences for such crimes—going as far as to reduce murder charges to manslaughter (qatl qasd)—out of deference to so-called customary norms, even though rulings tend not to explicitly state custom as the cause for reducing punishment. In effect, what commonly happens under such circumstances is a subtle documenting of the crime by the participants so as to reduce the direct responsibility of the assailant(s) in order to classify the homicide as an unpremeditated manslaughter (qasd) rather than as a premeditated killing (‘amd), avoiding in the meantime the possibility of the death penalty or life imprisonment. In line with the arguments propounded in the previous insanity case, the idea that the penal code would determine in all certainty the difference between an unpremeditated manslaughter and a premeditated killing is essentially incorrect. A more fruitful approach would be to assume that the rules of law, as defined in the penal code, only establish the legal framework through which the participants would act. In other words, there is no a priori shared agreement, and common understandings only gradually reveal themselves through the documentation of the crime scene. Responsibility is therefore a constructed notion that reveals itself in the documenting of the case at hand by the participants.

Potential victims

Khalid Zarzur was a married law student at Aleppo University in his early twenties when he was shot to death in 1995 by cousins of his.[10] The six-page autopsy report details the location of the 13 bullets that fatefully killed him. Khalid was what might be called a “potential victim,” someone who was targeted by his own cousins not because he did anything wrong or harmed anyone, but simply because what ought to have been the prime victim was unavailable at the time. A second victim “close” in blood relations was chosen as a replacement to the first, and that victim was Khalid. Only a year earlier, in 1994, and in the village of al-Rami (province of Idlib), a fight—one of those quasi-regular ones—occurred between Muhammad Khalid Zarzur and his cousin ‘Umar Muhammad Zarzur. As ‘Umar was stabbed to death, his brother Mahmud vowed revenge, even though Muhammad was arrested and Idlib’s criminal court soon began its usual proceedings. The fact that in such environments state justice proves “insufficient” and is often supplemented by a pre-state type of justice, does not necessarily indicate that the apparatuses of the state are inefficient, at least in the sense of not attempting to bring the participants to the negotiating table. What we probably have here is a situation where pre-state violence[11] constitutes an integral part of the normal functioning of society,[12] so that even compensation schemes (diya or civil compensations arbitrated by the courts) matter less.

Mahmud was therefore left compelled to retaliate. But against whom? The original culprit was under trial and serving his prison sentence, while his brother Mustafa was outside the country and working as a teacher in Saudi Arabia. Mustafa’s son Khalid, who at the time was a law student, became the de facto target faute de mieux, even though he was totally unrelated to the previous killing. Since Khalid’s parents were living in Saudi Arabia, his regular visits to the village were for the sake of his grandparents and in-laws. The absurdity of such artificially maintained controversies and the perseverance of a “forme élémentaire” of violence, is best noted in one of those strangely familiar statements by the defense lawyer:

[In 1994] a fight took place between Muhammad Khalid Zarzur and ‘Umar Muhammad Zarzur as an outcome of a sudden controversy. The latter stabbed the former once with a knife which caused him a hemorrhage that eventually led to Khalid’s death. The relatives of the victim, and specifically his brother (now the defendant in this case), instead of retaliating from the killer or one of his children or one of his brothers who work and reside in the village, decided instead to kill the brother of the killer Mustafa (now the plaintiff), for being a teacher, and to kill his son Khalid, for being a university student, and openly stated that on several occasions. [italics added]

And since the plaintiff Mustafa is a teacher in Saudi Arabia, the relatives of the victim, and in particular the defendant (Mahmud), was determined to and planned for killing the student at Aleppo University Khalid Zarzur, the son of the plaintiff, in spite of the latter having had rented a room in Aleppo: (1) The defendant had openly stated that he will kill the victim Khalid and that he was obligated (mulzam) to do so. (2) Knowing that his victim came to the village to buy some foodstuff, he started following him and kept close to him; and even though some intervened and proposed to him to forgo his retaliation he refused to listen. (3) The morning of the (Muslim) feast [in 1995], the victim arrived early to the al-Rami village to visit his grandparents, planning to return to Aleppo in the evening, and in effect that evening he said goodbye to his grandparents and waited for a microbus, in the company of Husam Zarzur and Ahmad al-‘Umar, on the main road. (4) Once the defendant realized that his victim was in the village, he prepared his gun and rushed home to bring his minor brother Bassam with him to the crime scene, after having provided the latter with a gun. When leaving home they crossed their maternal uncle Ahmad al-‘Ujayni, who had just come back from Ariha, and who informed them that the victim was waiting for a microbus at the main road. The uncle and his brother drove the two culprits on his three-wheel motorbike to the main road close to where the victim was standing. (5) The defendant then approached his victim pointing his gun towards him, and when Ahmad al-‘Umar noticed him he begged him not to shoot, but he nevertheless started shooting at his victim, and when the latter ran away he followed him to the home of the Husrum family, located 100 meters from the main road, he and his brother Bassam kept shooting at their victim, emptying their guns in the victim’s body. (6) Since the defendant premeditatedly killed his victim he was charged by the referral judge (ihala) for committing a premeditative killing (‘amd) based on article 535 of the penal code. The criminal court followed suit and charged him in 1999 of premeditative killing and lifetime hard labor.

Generally in cases of honor killings among men the courts would not go as far as the death penalty or life imprisonment. But as the defense council noted in his address to the Idlib criminal court, the culprits chose here the “wrong” victim: as there was no “valid” reason per se to target a young university student who was unrelated—except by family lineage—to the crime of the previous year, any sympathy towards the culprits could not have persevered for long. In effect, there are unspoken rules, and which the courts assume are an outcome of deeply rooted customs, which regulate the logic of honor crimes and which determine the degree of “closeness” that the victims ought to have to assailants of a previous crimes. For instance, a person targeted as potential victim in crime B ought to be “close” to the assailant in crime A, in the same way that the assailant in B should be “close” to the victim in A. But the assailants in this case (one of them was a minor, and his role remained disputed), in retaliation for the death of their brother a year earlier, targeted an innocent cousin of theirs. Such acts could backfire, setting alarm bells in the community, and prompting the courts for tougher punishments. What the courts do under such circumstances is to pass over the “honor” element, which it usually does without much fanfare, treating the case as a regular homicide. Hence the severe punishment as stipulated under article 535 of the penal code. But, as we shall see later, and under pressure from the higher cassation court in Damascus, Idlib’s criminal court had to revoke a year later its initial verdict, which in itself is an indication at the unsettling nature of honor killings.

The parsing of narrative threads

Following the various narratives contained in the depositions, and which are reassembled in the case’s dossier, proves beneficial for several reasons, chief among them is the ability to follow actors in their own language, rather than simply subjecting them to the rules of law. For our theme here, responsibility manifests itself not only in the court’s verdict, and in the way punishment is represented, but in the various strategies of the actors themselves, and in the way they represent responsibility, whether as something shared among members of a group or else as a value that is individualized.

Syria belongs to the inquisitorial system in which the weight of criminal investigation is assumed by public officials like the prosecutor and judge.[13] The big change from Ottoman times, and the shift from sharia to civil law, is that a crime is now perceived as a public concern, hence it is the obligation of the state to reveal the truth to the public in criminal matters, even if the participants decide to settle on their own, through, for instance, a diya compensation. Even though the victim’s relatives (at least one) usually sue the defendant’s party as part of their own private rights, the task of gathering evidence goes to the police and prosecution. It is, in effect, the task of the Public Prosecution Office (niyaba ‘amma) to follow a criminal case from beginning to end, and to bring all relevant evidence to the courts. In the Syrian criminal courts a representative of the prosecution sits on the courtroom’s “arch” (qaws) facing a three-judge panel in each one of the hearings. Since the prosecution takes the side of the victims, the latter’s party is constrained, when it comes to bringing forth evidence, to what the prosecution needs. Once the case is transferred through the referral judge (ihala) to the criminal court, the judge acts as an extension to the prosecution, attempting, through the court hearings, to hammer over the existing evidence and bringing new elements to the crime, whenever possible. In effect, the essence of an inquisitorial system has the judge and prosecutor act as the same person, while private parties bring evidence only at the request of the prosecutor-cum-judge. When examining police and prosecution depositions, not to mention the court hearings, it would therefore be of crucial importance to see how actors attempt to deploy their own strategies—in spite of all constraints imposed on them by police and prosecution—and what they are doing when uttering their statements. In effect, the constraints imposed on private parties in inquisitorial systems—at least compared to the accusatorial/adversary systems—take a heavier toll in societies like Syria where the state attempts to control the public sphere. More importantly, private parties are also generally constrained by customary norms of their own making, some of which—like honor killings—owe their existence to pre-state forms of organization, or more recently, to empire formations where the weakness and remoteness of the administrative center leaves social groups survive thanks to their own internal norms. Consequently, the loyalty of the individual to the group considerably reduces the auto-biographical element in depositions, a factor that tends to perceive responsibility triggered by collective undertakings.

Inquisitorial procedures, and the constraints of a closed state and society, aside, investigations are hampered by the lack of adequate forensic teams and equipments to properly conduct crime scenes investigations: anything from fingerprint and DNA analysis, chemical and biological testing, not to mention computer and electronic equipments, are for all purposes seldom available, while medical and psychiatric expertise tends to be heavy handed. Which reduces the investigations to a cross-examination of witnesses. But even the latter, with their de facto monopolization in inquisitorial procedures by prosecutors and judges, are more one-go depositions than thorough cross-examinations. In short, we are left with what participants have to say to know what happened. But it is how we read depositions—rather than simply what the law has to say—that proves crucial.

One of the witnesses (b. 1971) was a fourth-year law student in Aleppo. His description of the murder scene to the police the night of the murder was, as is common routine in police procedures, transcribed in official Arabic, which considerably alters the original colloquy (more on that later).

I was standing on the main road around 8:30 p.m. at the entrance of al-Rami together with Husam Zarzur and the victim Khalid Zarzur, when I saw Mahmud Zarzur coming from the village on his own. When the distance between us was close to two meters, the victim [Khalid] tried to hide himself between me and Husam. It was at this moment that Mahmud pulled a gun and pointed it towards his victim, then shot once in his direction. We all three ran away: as the victim ran south, his assailant followed him, and fired several shots in his direction. I then heard the victim addressing the killer Mahmud, ‘Mahmud, you killed me!’ When the victim reached the home of Saleh Husrum, located on the main road, he fell right at the main door and was followed by the killer Mahmud who shot him several times. I was still with Husam on the main road. I don’t know how the victim got into the house, then followed by his killer, who shot him several more times. We couldn’t see how the killer left the place. We entered the Husrum home with some of the people who had heard the gunshots and took the victim in a car to the hospital… In the Idlib hospital the victim died after suffering from his wounds, and I saw his body lying in the emergency room: there were around eleven bullets in various parts of the body…

Such depositions are typical in the sense that they immediately come to the point and gloss over the circumstances of the murder scene, identify the killer, point to the situation of the victim, and describe how the latter was killed. What the prosecution and court will retain from such depositions (there were additional ones, providing similar cues, in the seven-page handwritten police memo) is that the victim neither carried a gun nor did he provoke his assailant. The fact that victim and assailant did not have any previous encounter that day, and that, as a couple of witnesses reported, the assailant was informed by friends that his victim was present in the village, all point to a deliberately planned crime. Moreover, the thirteen bullets all over the victim’s body are no indication of a casual act. At another level, the witness’ deposition (and other ones as well) left open the probing issue of intention, with which the court will keep struggling, and which will be crucial in determining responsibility: Should the court wrestle with intent, and keep track of the issue based on what the defendant did and said, and based on other witness accounts, or should it forgo the issue altogether and focus instead on the objective conditions of the crime and the way it was executed?

In this respect, the defendant’s testimony—in particular the initial one to the police—may be of crucial importance, as everyone from the prosecution to the referral judge and the courts will look at it with less suspicion than statements that would be delivered later. In effect, the assumption here, which at times proves wrong, is that the defendant delivered his statements of the crime scene at a time when his acts were still fresh in his mind, possibly unaware of their legal implication, and with less constraints from his council and kin entourage. For the researcher, the defendants’ statements generally prove more rewarding than those furnished by other witnesses, considering the amount of description that they contain and the burden of proof that falls on all suspects. More importantly, such statements, coming from individuals who were the direct perpetrators (or mere instigators) of a crime, pose the whole issue of intent: Is it possible to “know,” in a way that would be beneficial for judicial decision making, the actors’ intentions, and hence accordingly, to assess their responsibility in what they did (or claimed they intended to do)? For that purpose, and with such questions in mind, let us closely examine some of the statements uttered by the main culprit (b. 1969, Arab Syrian) during his first encounter with the Ariha police (Idlib province) as soon as he gave himself up.

defendant’s statements	observations
I inform you that at 8:30 p.m. on 4 March 1995 while I was heading south towards a grocery store to buy a pack of cigarettes, I was surprised by Khalid Zarzur in the company of two unknown men on the main road.[14] When I reached the west of the road, I noticed that Khalid leaned his arm towards the back, which I found suspicious, considering that last year his uncle killed my brother. I pulled my 9 mm gun, which has permit number X, and shot once in his direction. He ran away immediately, but out of fear I kept shooting at him.	The importance of the introductory statements is that, first, they attempt to establish that the circumstances of the crime were purely accidental, and, second, that the accused acted in what he thought was self-defense. They also causally link the two-year crimes to one another as honor killings.
He entered a home that was unknown to me, and while I was unconscious (faqid al-wa‘i) I shot all remaining bullets in the 9 mm gun. I then pulled a 7 mm gun, permit number X, which was owned by my deceased brother, and shot again at Khalid who by then was lying on the floor.	The defendant’s alleged unconsciousness was an attempt to make himself not responsible of all the shots (13 in total) that were emptied on Khalid’s body. With the claim that the second gun was that of his deceased brother, the purpose was to emphasize the honorable side of his act.
As soon as I emptied all the bullets in the gun, I left the house and headed west towards our agricultural lands, and stayed there until the morning hiding in an olive tree. In the morning I headed towards Ariha, and while walking I saw one of my relatives, Husayn H, and asked him to help me in giving myself up to the authorities. And, in effect, he sheltered me in a home of the Ghunaymi family, while Husayn came to you [the police] and informed you of my location. I was then arrested and gave the two guns that I used in the crime I committed.	Since the defendant faced the death penalty or life imprisonment, his decision to voluntarily give himself up could serve as a plea bargaining strategy, since an “honorable killing” is no ordinary one: killers have nothing to hide, and nothing to lose anymore.
I confirm that I’ve seen the victim Khalid in the village on several occasions, but always ignored him. But this time, because of his provocations, which hit on my nerves, I couldn’t control myself anymore, so I shot him several times.	The defendant is playing on two fronts: he never deliberately planned for the killing, which de facto rules out the honor part, but, at the same time, he had to act because he was provoked, which puts him back on the honor trail.
I inform you that my maternal uncles Ahmad and Khalid did not instigate me to kill and retaliate for my deceased brother. The incident took place by coincidence and without any planning.	Since the prosecution generally assumes that in honor killings, even if there is only one assailant, there might be other kin members who may have provided the culprit with moral and/or material support, the defendant was here attempting to clear all other suspects.
When my brother was killed, I began carrying a gun out of fear for my own life. I purchased a 9 mm gun for SP7,000 from a nomadic gypsy (al-qirbat al-ruhhal) whom I had met in Saraqib three years ago. I don’t know where did my deceased brother purchase his own gun.	The purchase of the 9 mm gun from an unknown person, who himself, like all gypsies, happens to be an irregular “citizen,” was probably an attempt not to link his own kin to any illegal possession of guns, hence not to link them to the crime itself.
I don’t know where my [minor] brother Bassam is, and in any case he wasn’t with me at the crime scene.	It is customary to use minors in honor crimes, considering the reduced punishment that they receive.
The morning of the crime I traveled to al-Mu‘arra [80 km south of Aleppo] to visit my brother Khalid who is serving a prison sentence there for running away abroad [al-firar al-khariji],[15] and stayed there until 2:00 p.m.	The defendant’s timetable of the day of the crime constituted his principle “alibi,” in the sense that it showed, among other things, that he had not planned beforehand for a deadly encounter with his victim: he was going through his regular routines until he allegedly felt “provoked” by the other party. All such details were supposed to “protect” the defendant from the looming death penalty.
The conflict between my [maternal] family and my paternal uncles is old, and was caused by the fact that my mother was denied her inheritance [by her brothers], which led to my brother being killed by my father’s paternal cousins. I regret what I did and that’s my testimony.	The case folder contained a couple of the two parties’ “properties registry” (bayan qayd ‘aqari). Such registries detailed what the two victims in the 1994-95 crimes owned, and what their heirs should expect. But even though, as the defendant himself suggested in his closing statement, such property settlements could promote disequilibrium among families and groups, and even provoke violence, they are seldom accounted for in court rulings, for the simple reason that they neither causally account for the perpetrated crimes nor do they have any legal significance for the issues at stake.

Keep in mind that since all depositions to the police, prosecution, and the courts are not transcribed verbatim, the above text is only an official transcription of the original exchange. In the court hearings, for instance, every once in a while the chief judge, who does the cross-examination all by himself, publicly dictates his scribe a “summary” of a witness’ utterances, and the difference between what the witness said and what it is reported that he said could be big enough to alert any observer. Even though the examined witness or a party’s advocate have the right to correct the judge on what is dictated, the problem goes beyond the mere controversy over correctly reporting facts and statements. What is in effect lost in the process are the original utterances altogether, which in the words of J.L. Austin possess an illocutionary force of their own: actions are carried out by naming, threatening, warning, or promising, simply by saying the appropriate words. In a verbal exchange therefore, it is how utterances are said, rather than what they simply say, that matters. For example, the above verbal exchange, as recorded on paper by a police officer, attempts to reduce oral utterances to their content. For the researcher, the real challenge is the ability to read into recorded statements rather than simply reading them and understanding their content.

From day one, the defendant’s strategy clearly consisted in limiting the dangers of a maximum penalty as much as possible: he allegedly had a routine timetable with no plan to kill his victim with 13 bullets at the end of the day; he then met his victim “accidentally” and felt “provoked” by his quirky behavior; and, finally, he wrapped all his deposition by pointing to the history of the conflict—that his family was caught in property feuds with a parallel faction within the same family, and that his brother was killed the year before as an outcome of this conflict.

This last point should be of prime importance for our theme of legal responsibility: as actors seem caught in a deadly circle of violence through artificially maintained controversies, can state justice bring new representations of responsibility? In other words, can the system of justice bring different forms of legal responsibility from the ones that the actors have been accustomed to through their customary norms? In those pre-state elementary forms of violence maintained through artificial controversies, honor crimes are legitimized, power relations persevere through generations, and women are subordinated to men. In the meantime, properties are distributed accordingly: if, for instance, a married woman is denied her inheritance by her own family, her husband’s kin would feel offended, simply because their expectations were not met. Violence would then come at the rescue to readjust to the position of a lost honor. Which means that even if property relations are at the core of the conflict—a hypothesis that remains uncertain at best—violence does not necessarily lead to a system of material compensation, but only to a symbolic exchange of obligations through which “society” would persevere in its being. Once the state imposes itself as a third party in the long process of negotiation, and by posing as legal rule that self-retaliation is unlawful, the legitimacy of honor crimes—or at least those among men—and the subordination of women are de facto challenged. But what we see, however, is that in such societies which for a long time have been left to their own customary norms, the state, justice, and penal sanctions, do not all carry the same weight in all sectors of society. To begin, even though a postcolonial state like Syria has adopted since its independence modern codes of justice, it remains ambiguous in terms of its handling honor crimes. In the case, for instance, of honor crimes where women are brutally victimized, state justice seems to clearly carve in to the demands of custom which perceives such “crimes” as honorable. When honor crimes are among men, the tendency is to willy-nilly adjust to a commuted sentencing, reducing the penalty to its bare minimum. What all such instances point to is that the modern state, which receives its legitimacy through a full monopoly of violence and the rule of law, cannot exercise its judicial autonomy adequately unless its relation with civil society is negotiated by means of a knowledge that seeks to dominate and not simply subjugate others to one’s authority. Indeed, as the political events of the last decades have shown, the state itself is caught in a circle of violence not unlike the one that maintains social groups.

To come back to our case, once the police and prosecution complete their examinations of witnesses, a referral judge (qadi al-ihala) drafts his report and approves the transferal of the case to the criminal court. The referral report is particularly important—perhaps its importance is unjustifiably overblown—simply because it constitutes the first preliminary synthesis of the case based on all evidence accumulated thus far. But the importance of the referral report, however, even exceeds its preliminary purpose of providing a synthesis, as it becomes the prime document for future decisions, in particular the final verdict. In effect, even though the criminal courts have all the power to conduct all the hearings they want and bring fresh evidence, and strike down allegations brought up in the police and prosecution depositions, there are overall very few surprises once the referral report is drafted. Moreover, the referral report de facto transforms the case from simply being a “criminal event” with all kinds of scattered evidence into a judicial artifact, or into a “thing” where the legal rules are clearly defined in relation to the case at hand.

In what it refers to as “evidence (adilla),” the referral report (dated 19 May 1996) lists a total of 19 elements of evidence, beginning with the police documentation of the crime scene, the coronary report, lawyers’ memos, to the examination of witnesses. The referral judge recommended that the criminal court prosecutes the defendant on the basis of article 535 of the criminal code, namely a premeditated killing, which could lead to either the death penalty or life imprisonment with hard labor. To justify such a recommendation, the report extensively quotes the coronary report detailing the location of the 13 bullets in the victim’s body; witness accounts present at the murder scene whose testimonies pointed to the fact that the assailant was not provoked by his victim, and the former pulled his gun and started shooting once he noticed the latter; and the assailant kept following his victim even when the latter sheltered himself inside the Husrum home. But there was still the lingering issue of the assailant’s “original intent,” considering in particular the requirements of article 535: what are the criteria for establishing a premeditated killing (qatl ‘amd)? The referral report picks up a common notion of a premeditated killing, which has circulated long enough in law books and procedure manuals: “Considering that a premeditated killing is a special element in homicides, it must be dealt with clearly and proven independently. It consists in the actor of the crime having thought of his crime, planning all matters through a careful evaluation of possibilities, and then chose the path of crime calmly, with contained emotions, independently of strained sentiments, and then prepared for what he planned to do with all the needed tools at hand, prior to committing his crime calmly and thoughtfully.” One can see that such a definition of what a premeditated killing ought to be does not go very far, and that it can be flip-flopped in any direction, which is what attorneys and their clients typically do. There is no reason per se to a priori think of a premeditated killing in terms of a thoughtfully planned and calmly executed killing. What in practice happens, however, is that, when faced with a homicide, participants document the crime scene in such a way so as to index, from their own perspective, the differences between a premeditated and intended killing. Such a strategy was deployed, for instance, by the defendant in his first deposition: the day of the crime was documented and indexed in such a way so as to led to the conclusion that there was no deliberate planning from his part. Other witnesses, whether on the prosecution or defense side, went through similar undertakings. It is then left to the judge’s own discretionary powers to go through the final selection process, and choose what fits best with the coming verdict. For the referral judge, there was not much material that would conform to the definition he provided for premeditated killings. In one instance, he quotes a witness who met the accused a month-and-a-half before the crime: the witness allegedly summoned the accused to seek a peaceful settlement with his relatives (aqarib) and conclude all matters peacefully, to which the accused responded by saying that “matters only end once my brother’s killer is executed, and that’s something that’s imposed upon me.” Such a statement, the judge concludes, “points to the fact that the defendant was indeed planning his retaliation for the killing of his brother.”

But even though three years later in 1999 the Idlib criminal court endorsed the referral report and accused the defendant of premeditated killing, condemning him to life imprisonment, and requesting material compensations to the victim’s family, while keeping the death penalty at bay, the Damascus cassation court (Naqd) was not impressed by the verdict:

The court in its verdict, which was appealed by both parties, knowing beforehand the principles of a premeditated killing [as described by both the referral judge and criminal court], failed nonetheless to provide adequate arguments for its ruling, since the provided evidence is insufficient in that regard. The existence of hostility (‘adawa) between the accused and his victim, and the accused’s statement to one of the witnesses—that “matters only end once my brother’s killer is executed”—do not prove that the killing was premeditated, considering that the victim in this case was not the killer of his brother in the previous incident. As to the defendant shooting his victim and killing him with so many bullets, even though constitutes enough evidence to indicate that the killing was deliberate (qasd), does not prove that the killing was premeditated. Which shows that the evidence that the court has accumulated is not enough, and the conclusions that it drew were flawed.

With the higher court revoking the ruling of the lower court, the Idlib criminal court commuted in 2000 its verdict to a deliberate killing, with 15 years of hard labor, and a million pound ($20,000) compensation to the victim’s relatives.

Rules of law versus situational cues

The traditional wisdom of legal historians and theoreticians is to assume that the rules of law create an “objective reality” for actors in a particular situation. Customary rules are also assumed to act in tandem with the rules of law, in that they supply actors with an alternative set of choices, some of which might be de facto—if not de jure—endorsed by the courts. Moreover, in Islamic societies it is generally assumed that sharia law is a third source of law, standing side-by-side to the civil positive law of legislators and the customary rules of the people.

Actors in their daily practices, however, do not need to divide the sources of law into different categories as scholars routinely do. Nor do they have the luxury to simply “apply” the law, whatever its sources may be. What our two cases show is that the participants, whatever their status, group, institutional affiliation, or cultural system of meaning, describe what they “understand” in a particular situation. For instance, when in the first case the court was faced with the possibility of a dangerously “schizophrenic” person, doctors and laymen alike had to struggle with an “understanding” of schizophrenia, rather than simply “apply” medical categories to the patient. Similarly, and for the same case, notwithstanding the alleged schizophrenic behavior of the defendant, the court was faced with the defendant’s “responsibility” and the categorization of his crime as premeditated or deliberate. For every situation, therefore, actors describe what they understand by such notions as the person, intention, responsibility, schizophrenia, or a premeditated or deliberate killing, all of which might share other meanings in a different culture or in another situation.

The meaning of being a criminal is not contained within the act one commits but emerges from within the context through which one’s act is interpreted. In similar vein, the most crucial distinction in homicidal investigation, between premeditated and deliberate killing, receives its meaning less from the penal code than from the interpretations of actors through their documentation and indexation of the crime scene. As the latter are interpreted “in light of” the penal code, the court provides a final act of interpretation in its verdict. In countries like Syria where the “national” state has emerged in the past century in the wake of the dismemberment of the Ottoman Empire, pre-state forms of violence, which by and large remained unaccounted for by the imperial Ottoman administrative state, are now part of the “official record” through the accounts of individuals that witnessed the crime scene. Selective bits of information are presented as accounts of the crime scene, and actions are evaluated and become meaningful through a particular “reading” of the documents. Legal responsibility emerges from such an entangled web of evaluations, all of which are perceived as meaningful within the context of common-sense theories of behavior. A local custom like an honor killing loses under the national state its purely inter-kin and regional purpose, as it is investigated and accounted for by various regional and national courts; but in the process judges are not simply “applying” the law, as their interpretations heavily depend on the actors’ accounts of the crime scene.

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[1] Cf. Alain Supiot, Homo Juridicus. Essai sur la fonction anthropologique du Droit (Paris: Seuil, 2005), 282-3 : “Le fait que ces civilisations aient dû, ou doivent encore aujourd’hui, s’approprier la pensée juridique venue d’Occident nous donne l’illusion qu’elles se sont converties à notre culture juridique. Mais c’est méconnaître que l’idée de loi, lorsqu’elle n’a pas été tout simplement imposée par une puissance coloniale, a été importée comme une condition nécessaire au commerce avec l’Occident et nullement comme expression de valeurs humaines ou sociales. Le cas du Japon est ici particulièrement significatif, qui a ainsi adopté la culture juridique à usage externe, tout en continuant de faire prévaloir à usage interne sa vision interne de l’ordre humain.”

[2] The case was reported and discussed by Muhammad Fahr Shaqfah, “Naqs ahliyyat al-qatil fi jarimat al-qatl,” Qadaya wa-abhath qanuniyya: al-‘adala fi al-qada’ al-Suri (Damascus, 1997), 203-21. Even though the author fails to bring to his readers many crucial details about the case (police and prosecution depositions, statements uttered by the accused that would have pointed to his state of mind and the possible motivations behind his act, and the lawyers’ memos addressed to the court), most of the material proves enough for our purposes here, in particular when it comes to the legal incapacity of the accused. It remains unclear, however, why the suspect’s father was targeted from day one by the outraged mob, leading to the burning of his home, and why the court made him a second suspect with the charge of instigation. Moreover, there are no indications that anyone was charged with arson.

[3] Emphasis in bold is mine.

[4] All indications point to a different committee from the previous one.

[5] The Syrian penal code is known as Qanun al-‘uqubat, “the punishment law,” and was initially promulgated in 1949, with minor amendments over the years.

[6] That is, the ‘aqila in the language of the fiqh.

[7] Harold Garfinkel, Studies in Ethnomethodology (Englewood Cliffs, NJ: Prentice Hall, 1967), 38.

[8] Alain Supiot, Homo Juridicus, “La raison humaine n’est jamais une donnée immédiate de la conscience : elle est le produit d’institutions qui permettent à chaque homme de donner sens à son existence, qui lui reconnaissent une place dans la société et lui permettent d’y exprimer son talent propre. Dès lors que cette identité n’est plus garantie par l’État, les hommes s’efforcent de la fonder sur autre chose : sur une Référence religieuse, ethnique, régionale, tribale, sectaire, etc..”

[9] Jaridat al-Mubki, a satirist weekly newspaper published in Damascus, reproduced in its issue 1/14, dated 1 May 2005, a letter by the inhabitants of the farm of Farwan, part of Mu‘arrat al-Nu‘man and the province of Idlib, to the minister of interior, Ghazi Kan‘an (who had previously occupied the post of the head of Syrian intelligence in Lebanon), in which they stated that “at the previous Fitr feast a group of seven individuals known to us have fired shots in the direction of our homes, children, and women, with Russian automatic machineguns, with the hope to intimidate and kill some of us. They thus fired more than 300 shots, 90 of which were collected by the department of criminal security in the region of Mu‘arrat al-Nu‘man. The causes behind this assault go back to a long feud 54 years ago, among inhabitants in a village at the Farwan farm: the killer at the time received his punishment of 12 years in prison, and was then shot to death when leaving the palace of justice at Mu‘arrat al-Nu‘man in 1963.” And the letter continues: “Mr. Minister, considering that this feud has gone long enough—54 years—and we are a family that does not want more blood, but peace with the inhabitants of al-Barsah, we filed a complaint soon afterwards, and a police patrol came to our place, and three policemen took off the bullets that landed on our homes, and after the cleanup, a deposition was drafted and witnesses were brought from neighboring villages who were present at the crime scene. We then filed a complaint against the following six suspects… Until this date, no one was arrested, even though all six are present in their homes. We’ve also delegated ten of the nobles of the neighboring villages to seek peace, to no avail. Our opponents want more blood and do not desire peace, and in spite of all our attempts with the official security departments, nothing has been achieved and we’re thus afraid that more bloodshed may be on its way for a second time.”

[10] Idlib Jinayat ruling 95/1999, revised ruling 20/12/2000, Naqd ruling 22/1/2000.

[11] Pierre Clastres, “Archéologie de la violence. La guerre dans les sociétés primitives,” Libre, 1(1977).

[12] Nicolas Journet, “Aux origines des guerres, ” Sciences Humaines, 47(2005), 8-12 ; J. Haas, ed., The Anthropology of War (Cambridge University Press, 1990).

[13] In some western European countries, there is a definite inclination towards employing an inquisitorial system in all legal proceedings that have, or could have, a substantial public legal impact—e.g., matrimonial, status, administrative, social, labor, and financial matters. In a country like Syria, a French colonial creation in the wake of the dismemberment of the Ottoman Empire, the adoption of an inquisitorial system, an outcome of continental (Roman-canonical) civil and criminal codes and procedures, buttresses state control over the judiciary and society, which would have been impossible in a system run by accusatorial or adversary principles.

[14] Punctuation added in translation.

[15] It remains unclear why in this case going abroad would constitute a felony or crime.