Violence and legalresponsibility:
the construction ofcriminal narratives in contemporary Syria
Concepts ofcollective and individual legal responsibility in the Islamic world,
Danish Institute inDamascus, 6-7 May 2005.
Zouhair Ghazzal
Loyola UniversityChicago
ABSTRACT—In many rural and semi-urban communities ofthe eastern Mediterranean, violence may constitute a means, both political andeconomic, for social cohesion among agnatically organized groups. It maysimultaneously be a means to ensure male domination through the perpetration ofvalues along honor and shame codes. The advent of the modern authoritariannation-state, after centuries of Ottoman decentralized feudalism, has forced suchcommunities to articulate and legitimize their violence through narratives inorder to account for what state institutions might classify as “criminalbehavior.” In effect, the sudden advent of the modern nation-stateimplies, above all, that the state has the legitimate right to monopolizeviolence, a precept which often leads to the criminalization of pre-state orinter-kin violence. Thus, for instance, a criminal file typically narratesviolence from the viewpoint of actors unevenly distributed along the socialspectrum: policemen, prosecutors, judges, plaintiffs and defendants, witnesses,doctors and psychiatrists. In all such narrations, the attempt is either tolegitimize or delegitimize violence, hence to criminalize it in case of anywrongdoing. The same incident is thus documented from differentstandpoints—even though, in the final analysis, the one adopted by thecourts is the one which prevails—creating various linguisticconstructions 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 responsibilityfrom narratives which have been generated by actors in the wake of violentacts, and upon criminal investigations by the state authorities. Once acts ofviolence have been labeled as “criminal” by the state, they have tobe accounted for by social actors for the sake of one’s own community andthe other as well (the judicial authorities and the nation as-a-whole). A newform of responsibility may henceforth emerge.
FIRST DRAFT
This paper explores criminal law in contemporary Syria inconjunction with constructs of the notion of legal responsibility, whichnecessarily relates to such concepts as the person, individual, subject, andactor, all of which are derived from western history. In Ottoman Greater Syriain the second Tanzimat era (1856-76), as soon as new civil and penal codes wereintroduced, an epistemological shift occurred in both theory and practice. Ineffect, the nineteenth-century fin-de-siècle was not much different fromearlier Ottoman periods when it came to crimes and penal matters. In theabsence of a Public Prosecution Office, it was up to the private parties torequest, upon a homicidal crime, for a sharia judge to handle the matter. Inmost instances, the sharia judge would not request an investigation by anofficial authority (cities like Aleppo, Damascus, and Beirut, did not even havetheir own police force), but would rather rely upon the allegations of theparticipants. Moreover, and even though on rare occasions the judge wouldrequest the punishment of the accused (such verdicts were generally issued bythe Tanzimat regional councils rather than by a sharia judge), the bulk ofcriminal cases wrested with the dubious issue of blood money (diya
But the drafting and implementation of western inspiredcodes is one thing, and the proper understanding of their underpinningjuridical philosophy is quite another matter.
The question that is of concern to us in relation to ourtopic of legal responsibility could be formulated as follows: considering thatlegal responsibility implies in modern civil and penal codes the existence of anactive agent whose legal rights are protected, how is such responsibilityrepresented and practiced in the daily labor of the courts themselves? As itturns out, the codes themselves, having been imported from other cultures,prove insufficient to describe representations of legal responsibility. Inother words, we must move beyond the formalities of codes into the practices ofthe courts themselves. This is best done by picking up individual cases andlooking at how they are constructed as textual artifacts. We would thereforelook 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 whatthe rules of law say and what actors do
To expound upon my method, I would like to discuss in thecontext of this paper two cases drawn from the Syrian contemporary criminalcourts, and see how a notion like legal responsibility manifests itself in thepractices of these courts. For a country like Syria such an experience does notproceed without the usual logistical and legal problems. To begin, there arecurrently no procedures for researchers (and other individuals, besides judgesand lawyers) to have access to court cases, which de facto personalizes thewhole operation of accessing documents, while drastically limiting theiravailability (the absence of reading rooms and adequate libraries incourthouses adds additional hassles). More importantly, considering that civiland penal cases are only archived in dedicated warehouses for an average periodof 15 to 20 years, after which they are destroyed (itlaf
That said, there are several brands of criminal cases. Overhalf of the cases that pass to the Jinayat each year deal with major or pettythefts, while the other half is divided between homicides, drug use andtrafficking, rape and sexual indecency, economic security (amn iqtisadi
All such instances point to the difficulties that thejudiciary encounters in societies where contractual relations are notnecessarily established among abstract and atomized individuals endowed withlegal rights of their own. If in effect modern civil codes assume that thestate is the agency which not only has the sole monopoly over the legitimateuse of violence (Weber), but also establishes the rule of law, a role it hasgradually taken from the medieval feudal Church, then the counterpart is acivil society where individuals act as subjects of the state, hence looked uponas citizens with political and legal rights. But in societies where moderncodes have been transplanted, and where personal and kin relationspredominate—that is, where customary and informal norms outpace theirofficial counterparts—then how is responsibility to be legally determined?When examining individual cases we will have to observe how intentionality andresponsibility are constructed, and why they may or may not be crucial as theinvestigation unfolds and the case reaches its climax with the verdict.
Is he legally competent?
Questioning whether the accused is sui juris
On 3 August 1979 an old man who was praying in a smallmosque in Hama was stabbed with a knife by a perpetrator who allegedly camefrom the outside and who left the knife and ran away after assailing hisvictim. 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 toenter the room and got hold of him. The victim was transferred by helicopter toa hospital in Damascus, but died soon afterwards. When people in Hama knew ofhis death, they mobbed and burned the assailant’s family home, which wasclose to the murder scene.
On 14 October 1979 the referral judge (qadi al-ihala
On the victim’s side, the agent representing the“plaintiff’s personal legal right” (wakil jihatal-iddi‘a’ al-shakhsi), whichstands in parallel to the public authority of the Prosecution Office,complained that the diagnosis was not conducted under the court’ssupervision, which prompted the court to appoint a three-member committee tore-diagnose the defendant. The medical committee issued its report on November1981.
[MR1] Upon diagnosingthe accused, and after reading the medical reports and the judicial dossier, itturned out that from his general attire
In December 1981 the plaintiff’s party, acting on itsown behalf, that is independently of the Public Prosecution Office, reprimandedthe medical report, requesting its revision by a five-member committee:
As the court agreed that it needs to determine with moreaccuracy whether the accused the day he committed his crime was at thatparticular moment inflicted with a“mental incapacity” (naqs ‘aqli
[MR2] When the accusedwas examined, and questions were addressed to him by the five-member committee,it turned out that he possessed at the time his normal mentalcapacities in terms of judgment,concentration, and deduction. His thoughts proceeded logically and gradually,and he answered the questions in all clarity after understanding them, whilehis answers came in harmony with the questions. There is therefore noclear indication that he suffers from any mental deficiency
It was now the defense’s council turn to criticize themedical report, requesting another seven-member examination in a hospital, butthis time in light of the documents of the case, a request that the court approved, and the defendant was examined forthe fourth time in three years, on 11 April 1984, in the presence of the samecourt’s consultant.
[MR3] Afterinterrogating and examining the accused, and after consulting the documents ofthe case, we confirm that theaccused is now in a borderline state (hala hududiyya) due to his sick and immaturepersonality, and through which he might be subject to any perturbation
On May 1984 the plaintiff’s party presented a memo tothe court pointing out that the seven-member committee’s statement thatthe defendant’s responsibility was limited and that his actions weresubject to outside effects point to thefact that his father was the real instigator
A criminal hand killed a human being…but not any humanbeing…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 andmanners of the great Prophet manifested themselves, spreading good manners andhappiness among people. But we are not seeking here to list the innumerablequalities 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 hesaid that “there’s life in punishment.” Life here means thelife of society by undermining corruption and its effects, as any factorsof corruption is even more dangerous thanthe criminals themselves, confirming what God has stated: “Who kills asoul with another soul, corruption will come to earth, as if all people werekilled.”
The plaintiff’s party concluded that both the killerand his father should be subject to the death penalty. For its part thecriminal court issued its final ruling on 15 October 1984:
As both parties appealed the verdict, the higher cassation court(Naqd) in Damascus took hold of the caseand issued its ruling on December 1985. It decided to formally (shakl-an
With the cassation ruling behind, and with the prosecutionout of sight, the case now centered on personal civil rights and materialcompensation. The plaintiff’s side took hold of the cassation’sopinion that the diya ought to be lookedupon seriously since it is de facto part of customary law, arguing that sharialaw assesses the diya of apremeditated killing (‘amd)in terms of 100 female camels, among them 40 should be pregnant (Ibn Rushd, Bidayatal-mujtahid, 2:402; al-Fiqh‘ala al-madhahib al-arba‘a,5:368). For their part, the defendants argued that the illegal burning of theirhome ought to be deducted from the compensation. When the criminal courtrevalued the compensation to SP400,000 ($8,000), taking this time intoconsideration the status of the victim, the defendants appealed the decision,adding to their previous claim of the cost of their burned home, the argumentthat the diya in sharia lawshould not only be paid by the culprits (which in this case meant the father onhis own, since the son was diagnosed as mentally incapacitated), but also bythe entire family and tribe (‘ashira).[6] When thecourt reassessed the compensation on April 1987 one more time, it brought itdown to SP250,000, taking into consideration this time the victim’s oldage (close to 100). Finally, when the defendant made a request to leave thehospital, a medical committee found on February 1989 that he still sufferedfrom the same symptoms, and his request was thus denied.
Common understandings and misunderstandings
The case shows that the participants on both sides kept foryears struggling with their common stock of knowledge in order to determinewhether the accused (and his father) were legally responsible of the murder. Asno one denied the occurrence of the murder, and the person who committed theact did not deny his act either, the case shifted towards the mental capacityof the accused, and to a lesser degree, towards the father’sresponsibility (even though it remains unclear how the father became asecondary suspect). The general assumption behind every crime is that legalresponsibility is causally linked to the act of the perpetrator; or, in otherwords, the incidence of responsibilityis attributed to a human being (or a juristic person, state institution orcorporation). In homicides legal responsibility is expressed in the generaldivision between deliberately planned crimes (‘amd
In our case here, the court stumbled over the issue whetherthe accused was mentally incapacitated. The criminal court was in effect remindedby the higher cassation court that once the agent is perceived as mentallyincapacitated, it would then become meaningless to label his act asdeliberately planned and executed (‘amd), which implies that once a person is incapacitated, he is de facto—ifnot de jure—not responsible. But then the central issue becomes, how todetermine insanity? When the Syrian penal code states in a single propositionthat “A person is exonerated from punishment if he was in a state ofmadness (yu‘fa mina al-‘iqab man kana fi halat al-junun
In the first medical report (MR1), between the unremarkableremarks on the patient’s “general attire” and the confidenceof a statement like “we have unanimously decided,” are severalgeneral observations on a person that did not seem to react all too well withhis environment: he talked to himself, was indifferent, lacked reaction, butnevertheless managed to admit the crime attributed to him. Such descriptionscould easily be attributed to any “normal” person who does not feelat home with his environment. The medical report relies in effect on too muchtaken-for-granted common assumptions about “insanity,” which itdoes not even bother to clearly define and wrap up in a medical language. Beinga committee of medical authority, approved by another legal authority, thecommittee, based on the authority that it carried, had no other purpose but tostate 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 inwhether he was legally incapacitated at the moment of the crime, the wholeenterprise amounted to how to formulate the accused’s responsibility (orlack 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, aviewpoint on what happened, the sanity or insanity of the accused, and whetherhe was responsible or legally incapacitated, a consensus had to come throughfrom the common stock of knowledge that actors shared. Such a common stock ofknowledge only becomes known, however, once the actors begin to index,document, and describe the crime scene in their own familiar language. Itreveals itself, for instance, in the police reports, prosecution depositions,court hearings, and final ruling. As each utterance by the actors plays on acommon understanding of the things and situations at hand, what is thereforeleft 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 thedefendant “cannot be held responsible for his actions,” the reportcould have been fully accredited were it not for the plaintiff’s partyquestioning precisely of what was unsaid in the report: the nature of thealleged schizophrenic behavior attributed to the defendant, the periods inwhich he might have carried such a mental illness, and, above all, whether atthe moment of the crime, he did carry such an illness; and, finally, in case hedid, does that make him legally irresponsible?
Harold Garfinkel famously stated that “the notion thatwe are dealing with an amount of shared agreement remains essentiallyincorrect.”[7] Besides thefact that with every utterance both speaker and hearer assume a common stock ofknowledge that they do not directly refer to, and while the speaker utters hisstatements on the basis that the hearer will understand, the hearer may occasionally request that the speakerclarifies what he “meant” by something. As such meaningclarifications have no end, in real life situations therefore, the process ofagreement does not in principle come to an end, as speaker and hearer couldindefinitely exploit their mutual common knowledge and presumed misunderstandings(“What do you mean by this?” or “Are you sure we know whatwe’re talking about here?” are among the most common forms ofspeech 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 theunfolding of a case, and hence to play with the notion that “enoughevidence has been furnished” to come up with a verdict. What theparticipants therefore typically do under such strained conditions is to come upwith strategies that would document the crime scene in ways that would bebeneficial to their purposes and interests, hoping that they would receiveaccreditation from the court for what they had documented.
In our case here, once the court accepted theplaintiff’s appeal, which de facto implied that the first medical reportproved unsatisfactory, another medical committee drafted a second report (MR2).In itself, the second report, even though it completely reversed the findingsof the previous one, did not bring any new element of knowledge: the diagnosesin the first and second reports were so poor, and left so muchtaken-for-granted knowledge, that they could have been so easily swapped withone another while completely reversing their conclusions. Notice how in MR2 theemphasis has all of a sudden shifted to the accused’s “normalmental 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 athird medical report (MR3) to reach a compromise. In MR3 the accused wasperceived as living in a “borderline state” with possible“perturbation[s] from the outside world.” The doctors, save for asingle dissenting voice, were even able to quantify the accused’sresponsibility: 70 percent.
One can deduce from such medical flip-flops that“anything goes” as long as the participants are satisfied, and aslong as the court is able to reach a “borderline state” among theparties. A more thorough examination of all three reports reveals thefollowing. (a) Both parties accepted beforehand the judgment of the medicalauthorities simply because there was no legal language that would have beenable to assess the defendant’s state of mind. (b) A medical authority isassumed to be “scientific” and “impartial,” hence itwould provide the participants with a “neutral” language. (c) Thethree reports, while implicitly claiming the impartiality of science, mostlyplayed on matters that the participants understood but were left unmentioned,in particular the crucial issue as to howthe 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 wouldrequest more documentary evidence for what was left unsaid. The documentaryevidence kept shifting between the purely medical and the legal history of thecase. (e) All three medical committees kept their language specifically vague,shifting their analysis and conclusions in such a way only to satisfy the partyof appeal. (f) As each party waited for something more to be said, each oneplayed the game of appealing over what was left vague and unsaid, untilsomething more satisfactory came up. (g) In principle the game between the twoparties could have gone forever, as it was arbitrarily cut short by thecourt’s decision to proceed on its own with the case.
As it was difficult for all three main issues—thedefendant’s “insanity,” the father’s presumed“responsibility,” and the cash compensation—to come up with aneutrally “decisive” language, which would have been approved byall participants, the actors documented the crime incident by means ofextra-legal and biographical events. Thus, when the two accused were summonedto compensate the plaintiff’s party for SP200,000, without, however,providing any rationale for the assessment of the compensation, it was thecassation court that bailed the lower criminal court its way out: by givingcustomary practices—that is blood money (diya
Let us imagine for a moment a situation where the medicalcommittees would have acted more professionally: longer examinations of thepatient, a better use of the medical findings (statistics, charts and graphs),comparisons with other medical cases (local and regional), and reports thatwould have integrated such findings with one another (personal observations ofthe patient integrated to findings in the medical literature at large). Let usalso imagine that police and judicial authorities would have proceeded morethoroughly in collecting evidence, interrogating witnesses, and conducting thehearings, not to mention the drafting of the rulings, would have such radicalchanges forced the participants to adopt alternative strategies? Would a betterprofessional 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 contemplatedregarding a presumably mentally disordered person was that person’s abilityto understand, in particular the ability tounderstand specifics: signing a contract, inheriting, or committing a crime,each of which implies a differentkind of understanding and responsibility.) What is certain is the more thejudiciary (and related authorities such as the medical) would opt forprocedures and languages situated outside the common stock of knowledge (thatis, the customary norms), the more they would become autonomous in the sense ofdistancing themselves from common practices and norms. The importance of such ajudicial autonomy is that it would enable individuals, groups, and institutionsto bypass some of their normative values in order to abide by state legislatedrules of law. In other words, the more the judicial and medical authoritieshide behind their professional jargons, which must lie outside the common sensenorms, the greater the opportunities provided for actors to come up withalternative strategies of societal integration. The assumption here is thatstate controlled rules of law would have as their main purpose a bettercohesiveness of society that would not limit itself to common religious,ethnic, tribal or regional norms.
Execution-style killings
Before I elaborate further on the ideas proposed in theprevious section, I would like to consider another homicidal case, which eventhough very different in its events and treatment from the previous one, bringsadditional valuable material to our theme of legal responsibility. The Syriancountryside and some of the slum neighborhoods around the main cities, dominatedmostly by peasant families and tribes, routinely witness a rash of honorkillings.
Potential victims
Khalid Zarzur was a married law student at Aleppo Universityin his early twenties when he was shot to death in 1995 by cousins of his.
Mahmud was therefore left compelled to retaliate. Butagainst whom? The original culprit was under trial and serving his prisonsentence, while his brother Mustafa was outside the country and working as ateacher in Saudi Arabia. Mustafa’s son Khalid, who at the time was a lawstudent, became the de facto target faute de mieux, even though he was totally unrelatedto the previous killing. Since Khalid’s parents were living in SaudiArabia, his regular visits to the village were for the sake of his grandparentsand in-laws. The absurdity of such artificially maintained controversies andthe perseverance of a “forme élémentaire”
[In 1994] a fight took place between Muhammad Khalid Zarzur and‘Umar Muhammad Zarzur as an outcome of a sudden controversy. The latterstabbed the former once with a knife which caused him a hemorrhage thateventually led to Khalid’s death. The relatives of the victim, andspecifically his brother (now the defendant in this case), instead ofretaliating from the killer or one of his children or one of his brothers whowork and reside in the village, decidedinstead to kill the brother of the killer Mustafa (now the plaintiff), forbeing a teacher, and to kill his sonKhalid, 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), wasdetermined to and planned for killing the student at Aleppo University KhalidZarzur, the son of the plaintiff, in spite of the latter having had rented aroom in Aleppo: (1) The defendant had openly stated that he will kill thevictim Khalid and that he was obligated (mulzam) to do so. (2) Knowing that his victim came to the village to buy somefoodstuff, he started following him and kept close to him; and even though someintervened 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 tothe al-Rami village to visit his grandparents, planning to return to Aleppo inthe evening, and in effect that evening he said goodbye to his grandparents andwaited 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 thevillage, he prepared his gun and rushed home to bring his minor brother Bassamwith him to the crime scene, after having provided the latter with a gun. Whenleaving home they crossed their maternal uncle Ahmad al-‘Ujayni, who hadjust come back from Ariha, and who informed them that the victim was waitingfor a microbus at the main road. The uncle and his brother drove the twoculprits on his three-wheel motorbike to the main road close to where thevictim was standing. (5) The defendant then approached his victim pointing hisgun towards him, and when Ahmad al-‘Umar noticed him he begged him not toshoot, but he nevertheless started shooting at his victim, and when the latterran away he followed him to the home of the Husrum family, located 100 metersfrom the main road, he and his brother Bassam kept shooting at their victim,emptying their guns in the victim’s body. (6) Since the defendantpremeditatedly killed his victim he was charged by the referral judge (ihala
Generally in cases of honor killings among men the courtswould not go as far as the death penalty or life imprisonment. But as thedefense council noted in his address to the Idlib criminal court, the culpritschose here the “wrong” victim: as there was no “valid”reason per se to target a young university student who was unrelated—exceptby family lineage—to the crime of the previous year, any sympathy towardsthe culprits could not have persevered for long. In effect, there are unspokenrules, and which the courts assume are an outcome of deeply rooted customs, whichregulate the logic of honor crimes and which determine the degree of“closeness” that the victims ought to have to assailants of aprevious crimes. For instance, a person targeted as potential victim in crime Bought to be “close” to the assailant in crime A, in the same waythat the assailant in B should be “close” to the victim in A. Butthe assailants in this case (one of them was a minor, and his role remaineddisputed), in retaliation for the death of their brother a year earlier,targeted an innocent cousin of theirs. Such acts could backfire, setting alarmbells in the community, and prompting the courts for tougher punishments. Whatthe courts do under such circumstances is to pass over the “honor”element, which it usually does without much fanfare, treating the case as aregular homicide. Hence the severe punishment as stipulated under article 535of the penal code. But, as we shall see later, and under pressure from thehigher cassation court in Damascus, Idlib’s criminal court had to revokea year later its initial verdict, which in itself is an indication at theunsettling nature of honor killings.
The parsing of narrative threads
Following the various narratives contained in thedepositions, and which are reassembled in the case’s dossier, provesbeneficial for several reasons, chief among them is the ability to followactors in their own language, rather than simply subjecting them to the rulesof law. For our theme here, responsibility manifests itself not only in thecourt’s verdict, and in the way punishment is represented, but in thevarious strategies of the actors themselves, and in the way they representresponsibility, whether as something shared among members of a group or else asa value that is individualized.
Syria belongs to the inquisitorial system in which theweight of criminal investigation is assumed by public officials like theprosecutor and judge.
Inquisitorial procedures, and the constraints of a closedstate and society, aside, investigations are hampered by the lack of adequateforensic 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 seldomavailable, while medical and psychiatric expertise tends to be heavy handed.Which reduces the investigations to a cross-examination of witnesses. But eventhe latter, with their de facto monopolization in inquisitorial procedures byprosecutors and judges, are more one-go depositions than thoroughcross-examinations. In short, we are left with what participants have to say toknow what happened. But it is how weread depositions—rather than simply what the law has to say—thatproves crucial.
One of the witnesses (b. 1971) was a fourth-year law studentin Aleppo. His description of the murder scene to the police the night of themurder was, as is common routine in police procedures, transcribed in officialArabic, which considerably alters the original colloquy (more on that later).
I was standing on the main road around 8:30 p.m. at the entranceof al-Rami together with Husam Zarzur and the victim Khalid Zarzur, when I sawMahmud Zarzur coming from the village on his own. When the distance between uswas close to two meters, the victim [Khalid] tried to hide himself between meand Husam. It was at this moment that Mahmud pulled a gun and pointed ittowards his victim, then shot once in his direction. We all three ran away: asthe victim ran south, his assailant followed him, and fired several shots inhis direction. I then heard the victim addressing the killer Mahmud,‘Mahmud, you killed me!’ When the victim reached the home of SalehHusrum, located on the main road, he fell right at the main door and wasfollowed by the killer Mahmud who shot him several times. I was still withHusam 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’tsee how the killer left the place. We entered the Husrum home with some of thepeople who had heard the gunshots and took the victim in a car to thehospital… In the Idlib hospital the victim died after suffering from hiswounds, and I saw his body lying in the emergency room: there were aroundeleven bullets in various parts of the body…
Such depositions are typical in the sense that theyimmediately come to the point and gloss over the circumstances of the murderscene, identify the killer, point to the situation of the victim, and describehow the latter was killed. What the prosecution and court will retain from suchdepositions (there were additional ones, providing similar cues, in theseven-page handwritten police memo) is that the victim neither carried a gunnor did he provoke his assailant. The fact that victim and assailant did nothave any previous encounter that day, and that, as a couple of witnessesreported, the assailant was informed by friends that his victim was present inthe village, all point to a deliberately planned crime. Moreover, the thirteenbullets all over the victim’s body are no indication of a casual act. Atanother level, the witness’ deposition (and other ones as well) left openthe probing issue of intention, with which the court will keep struggling, andwhich will be crucial in determining responsibility: Should the court wrestlewith intent, and keep track of the issue based on what the defendant did andsaid, and based on other witness accounts, or should it forgo the issuealtogether and focus instead on the objective conditions of the crime and the way it was executed?
In this respect, the defendant’s testimony—inparticular the initial one to the police—may be of crucial importance, aseveryone from the prosecution to the referral judge and the courts will look atit with less suspicion than statements that would be delivered later. Ineffect, the assumption here, which at times proves wrong, is that the defendantdelivered his statements of the crime scene at a time when his acts were stillfresh in his mind, possibly unaware of their legal implication, and with lessconstraints from his council and kin entourage. For the researcher, thedefendants’ statements generally prove more rewarding than thosefurnished by other witnesses, considering the amount of description that theycontain and the burden of proof that falls on all suspects. More importantly,such statements, coming from individuals who were the direct perpetrators (ormere instigators) of a crime, pose the whole issue of intent: Is it possible to“know,” in a way that would be beneficial for judicial decisionmaking, the actors’ intentions, and hence accordingly, to assess theirresponsibility in what they did (or claimed they intended to do)? For thatpurpose, and with such questions in mind, let us closely examine some of thestatements uttered by the main culprit (b. 1969, Arab Syrian) during his firstencounter 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 officialtranscription of the original exchange. In the court hearings, for instance,every once in a while the chief judge, who does the cross-examination all byhimself, publicly dictates his scribe a “summary” of awitness’ utterances, and the difference between what the witness said andwhat 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 tocorrect the judge on what is dictated, the problem goes beyond the merecontroversy over correctly reporting facts and statements. What is in effectlost in the process are the originalutterances altogether, which in the words of J.L. Austin possess anillocutionary force of their own: actions are carried out by naming,threatening, warning, or promising, simply by saying the appropriate words. Ina verbal exchange therefore, it is how utterances are said, rather than what
From day one, the defendant’s strategy clearlyconsisted in limiting the dangers of a maximum penalty as much as possible: heallegedly had a routine timetable with no plan to kill his victim with 13bullets at the end of the day; he then met his victim“accidentally” and felt “provoked” by his quirkybehavior; and, finally, he wrapped all his deposition by pointing to thehistory of the conflict—that his family was caught in property feuds witha parallel faction within the same family, and that his brother was killed theyear before as an outcome of this conflict.
This last point should be of prime importance for our themeof legal responsibility: as actors seem caught in a deadly circle of violencethrough artificially maintained controversies, can state justice bring newrepresentations of responsibility? In other words, can the system of justicebring different forms of legal responsibility from the ones that the actorshave been accustomed to through their customary norms? In those pre-stateelementary forms of violence maintained through artificial controversies, honorcrimes are legitimized, power relations persevere through generations, andwomen are subordinated to men. In the meantime, properties are distributedaccordingly: if, for instance, a married woman is denied her inheritance by herown family, her husband’s kin would feel offended, simply because theirexpectations were not met. Violence would then come at the rescue to readjustto the position of a lost honor. Which means that even if property relationsare at the core of the conflict—a hypothesis that remains uncertain atbest—violence does not necessarily lead to a system of materialcompensation, but only to a symbolic exchange of obligations through which“society” would persevere in its being. Once the state imposesitself as a third party in the long process of negotiation, and by posing aslegal rule that self-retaliation is unlawful, the legitimacy of honorcrimes—or at least those among men—and the subordination of womenare de facto challenged. But what we see, however, is that in such societieswhich 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 sectorsof society. To begin, even though a postcolonial state like Syria has adoptedsince its independence modern codes of justice, it remains ambiguous in termsof its handling honor crimes. In the case, for instance, of honor crimes wherewomen are brutally victimized, state justice seems to clearly carve in to thedemands of custom which perceives such “crimes” as honorable. Whenhonor crimes are among men, the tendency is to willy-nilly adjust to a commutedsentencing, reducing the penalty to its bare minimum. What all such instancespoint to is that the modern state, which receives its legitimacy through a fullmonopoly of violence and the rule of law, cannot exercise its judicial autonomyadequately unless its relation with civil society is negotiated by means of aknowledge that seeks to dominate and not simply subjugate others to one’sauthority. Indeed, as the political events of the last decades have shown, thestate itself is caught in a circle of violence not unlike the one that maintainssocial groups.
To come back to our case, once the police and prosecutioncomplete their examinations of witnesses, a referral judge (qadi al-ihala
In what it refers to as “evidence (adilla
But even though three years later in 1999 the Idlib criminalcourt endorsed the referral report and accused the defendant of premeditatedkilling, condemning him to life imprisonment, and requesting materialcompensations to the victim’s family, while keeping the death penalty atbay, 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 byboth the referral judge and criminal court], failed nonetheless to provideadequate arguments for its ruling, since the provided evidence is insufficientin that regard. The existence of hostility (‘adawa
With the higher court revoking the ruling of the lowercourt, the Idlib criminal court commuted in 2000 its verdict to a deliberatekilling, 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 theoreticiansis to assume that the rules of law create an “objective reality”for actors in a particular situation. Customary rules are also assumed to actin tandem with the rules of law, in that they supply actors with an alternativeset of choices, some of which might be de facto—if not dejure—endorsed by the courts. Moreover, in Islamic societies it isgenerally assumed that sharia law is a third source of law, standingside-by-side to the civil positive law of legislators and the customary rulesof the people.
Actors in their daily practices, however, do not need todivide the sources of law into different categories as scholars routinely do.Nor do they have the luxury to simply “apply” the law, whatever itssources may be. What our two cases show is that the participants, whatevertheir status, group, institutional affiliation, or cultural system of meaning,describe what they “understand” in a particular situation. Forinstance, when in the first case the court was faced with the possibility of adangerously “schizophrenic” person, doctors and laymen alike had tostruggle with an “understanding” of schizophrenia, rather thansimply “apply” medical categories to the patient. Similarly, andfor the same case, notwithstanding the alleged schizophrenic behavior of thedefendant, the court was faced with the defendant’s“responsibility” and the categorization of his crime aspremeditated or deliberate. For every situation, therefore, actors describewhat they understand by such notions as the person, intention, responsibility,schizophrenia, or a premeditated or deliberate killing, all of which mightshare other meanings in a different culture or in another situation.
The meaning of being a criminal is not contained within theact one commits but emerges from within the context through which one’sact is interpreted. In similar vein, the most crucial distinction in homicidalinvestigation, between premeditated and deliberate killing, receives itsmeaning less from the penal code than from the interpretations of actors throughtheir documentation and indexation of the crime scene. As the latter areinterpreted “in light of” the penal code, the court provides afinal act of interpretation in its verdict. In countries like Syria where the“national” state has emerged in the past century in the wake of thedismemberment of the Ottoman Empire, pre-state forms of violence, which by andlarge remained unaccounted for by the imperial Ottoman administrative state,are now part of the “official record” through the accounts of individualsthat witnessed the crime scene. Selective bits of information are presented asaccounts of the crime scene, and actions are evaluated and become meaningfulthrough a particular “reading” of the documents. Legalresponsibility emerges from such an entangled web of evaluations, all of whichare perceived as meaningful within the context of common-sense theories ofbehavior. A local custom like an honor killing loses under the national stateits purely inter-kin and regional purpose, as it is investigated and accountedfor by various regional and national courts; but in the process judges are notsimply “applying” the law, as their interpretations heavily dependon the actors’ accounts of the crime scene.
[1]
[2] The case wasreported and discussed by Muhammad Fahr Shaqfah, “Naqs ahliyyat al-qatilfi jarimat al-qatl,” Qadaya wa-abhath qanuniyya: al-‘adala fial-qada’ al-Suri (Damascus, 1997),203-21. Even though the author fails to bring to his readers many crucialdetails about the case (police and prosecution depositions, statements utteredby the accused that would have pointed to his state of mind and the possiblemotivations behind his act, and the lawyers’ memos addressed to thecourt), most of the material proves enough for our purposes here, in particularwhen it comes to the legal incapacity of the accused. It remains unclear,however, why the suspect’s father was targeted from day one by theoutraged mob, leading to the burning of his home, and why the court made him asecond suspect with the charge of instigation. Moreover, there are noindications that anyone was charged with arson.
[3] Emphasis inbold is mine.
[4] Allindications point to a different committee from the previous one.
[5] The Syrianpenal code is known as Qanun al-‘uqubat, “the punishment law,” and was initially promulgated in1949, with minor amendments over the years.
[6] That is, the‘aqila in the language of thefiqh.
[7] HaroldGarfinkel, Studies in Ethnomethodology(Englewood Cliffs, NJ: Prentice Hall, 1967), 38.
[8]
[9] Jaridatal-Mubki, a satirist weekly newspaperpublished in Damascus, reproduced in its issue 1/14, dated 1 May 2005, a letterby the inhabitants of the farm of Farwan, part of Mu‘arratal-Nu‘man and the province of Idlib, to the minister of interior, GhaziKan‘an (who had previously occupied the post of the head of Syrianintelligence in Lebanon), in which they stated that “at the previous Fitrfeast a group of seven individuals known to us have fired shots in thedirection of our homes, children, and women, with Russian automaticmachineguns, with the hope to intimidate and kill some of us. They thus firedmore than 300 shots, 90 of which were collected by the department of criminalsecurity in the region of Mu‘arrat al-Nu‘man. The causes behindthis assault go back to a long feud 54 years ago, among inhabitants in avillage at the Farwan farm: the killer at the time received his punishment of12 years in prison, and was then shot to death when leaving the palace ofjustice at Mu‘arrat al-Nu‘man in 1963.” And the lettercontinues: “Mr. Minister, considering that this feud has gone longenough—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 soonafterwards, and a police patrol came to our place, and three policemen took offthe bullets that landed on our homes, and after the cleanup, a deposition wasdrafted and witnesses were brought from neighboring villages who were presentat the crime scene. We then filed a complaint against the following sixsuspects… Until this date, no one was arrested, even though all six arepresent in their homes. We’ve also delegated ten of the nobles of theneighboring villages to seek peace, to no avail. Our opponents want more bloodand do not desire peace, and in spite of all our attempts with the officialsecurity departments, nothing has been achieved and we’re thus afraidthat more bloodshed may be on its way for a second time.”
[10] IdlibJinayat ruling 95/1999, revised ruling 20/12/2000, Naqd ruling 22/1/2000.
[11]
[12]
[13] In somewestern European countries, there is a definite inclination towards employingan inquisitorial system in all legal proceedings that have, or could have, asubstantial 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 OttomanEmpire, the adoption of an inquisitorial system, an outcome of continental(Roman-canonical) civil and criminal codes and procedures, buttresses statecontrol over the judiciary and society, which would have been impossible in asystem run by accusatorial or adversary principles.
[14] Punctuationadded in translation.
[15] It remainsunclear why in this case going abroad would constitute a felony or crime.