Monday, July 9, 2018

Courts by rebel forces: legality, legitimacy, utility

Stockholm University Professor Mark Klamberg
Stockholm University's Mark Klamberg has a fascinating and important new article in the Journal of International Criminal Justice, now available in the public commons without paywalls. [see bottom of post for an update on how to access the article]. "The Legality of Rebel Courts during Non-International Armed Conflicts" is especially notable for two reasons. First, it ably surveys the legal status of rebel courts under international criminal law, international humanitarian law, international human rights law, and public policy rationales. Second, it describes the recent Swedish criminal trial of former Syrian rebel Haisam Sakhanh for executing captured Syrian soldiers in accordance with the decree of a Syrian rebel pseudo-judicial council. Did Sakanh commit murder or properly carry out a sentence?

Rebel courts are surprisingly understudied considering how frequently they have been employed. Professor Klamberg notes some recent examples:
During the Algerian war of independence, from 1954 until 1962, the L’Armée de libération nationale (ALN) stated that prisoners were only executed after having been tried and found guilty of violating the laws and customs of war. The ALN was later transformed into the regular army of Algeria. Throughout the Chinese civil war, from 1927 until 1936, and again, 1946 until 1950, the Chinese Communist Party, which later became the ruling party of China, issued instructions that ‘notorious criminals shall be executed by shooting after being tried and convicted by court’. Other instances of rebel courts include: the National Democratic Front of the Philippines peoples’ courts during the ongoing rebellion in the Philippines, which started in 1969; Free Aceh Movement village councils, called majelis, during the insurgency in Aceh, Indonesia, from 1976 until 2005; the Revolutionary United Front (RUF) peoples’ courts during the armed conflict in Sierra Leone, from 1991 until 2002; the Farabundo Martí National Liberation Front (FMNL) courts during the armed conflict in El Salvador from 1980 until 1991; Communist Party of Nepal (Maoist Centre) courts during the armed conflict in Nepal from 1996 until 2006; and finally, Liberation Tigers of Tamil Eelam (LTTE) courts during the conflict in Sri Lanka from 1983 until 2009.
Legal developments and the passage of time have bolstered arguments for the legality and legitimacy of rebel courts. Common Article 3(1)(d) of the Geneva Conventions prohibits "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples." This is a tough standard for rebels to meet, whose insurrection stands against much, if not all, that is regularly constituted within an existing government. In 1977, Article 6 of Additional Protocol II replaced the requirement for a "regularly constituted court," instead requiring a court "offering the essential guarantees of independence and impartiality." This standard is far more attainable for rebel forces to achieve.

Haisam Sakanh fighting with rebel forces in Syria, ca. 2012
The most interesting part of the paper is the story of Haisam Sakanh's 2017 Swedish criminal trial and appeal. Professor Klamberg, who also testified as an international law expert, recounts the facts:
When the so-called ‘Arab Spring’ erupted during 2011 Haisam Sakhanh was residing in Italy, where he had lived since 1999. On 30 April 2012, Sakhanh travelled to Syria. He joined the rebel group called ‘Suleiman’s Company’ (Firqat Suleiman el-muqatila), which was mainly active in the Djebel el-zawia region in Idlib and Hama provinces, both rebel strongholds at that time. In early May 2012 (4 or 5 May), Suleiman’s Company carried out an attack, together with another rebel group — Ahrar Alshamal Sermin Battalion — and captured soldiers of the Government of Syria. The captured soldiers were eventually moved to a place close to Kafar Kila. It was captured on film that members of Suleiman’s company, including Sakhanh, and Ahrar Alshamal Sermin Battalion, were standing next to the prisoners, who were then executed by members of Suleiman’s Company. The corpses were thrown into pits. The prosecutor claimed that the executions took place on 6 May 2012, while Sakhanh stated they occurred on 7 May 2012. On 18 June 2013, Sakhanh travelled to Sweden where he applied for asylum. On 5 September 2013, the — partially edited — film of the incident was published on the New York Times website. The film was also later shown at the trial in Stockholm District Court. Sakhanh was granted residence and refugee status in Sweden on 17 October 2013. Shortly thereafter, however, the Swedish police received information about the alleged crimes.
The Swedish penal code prohibits murder and crimes against international law, and incorporates norms of international humanitarian law. At trial and on appeal, the facts were not in dispute. At the heart of the legal controversy was Sakanh's assertion that he carried out a death sentence issued by a proper court as required by international humanitarian law, and was thus not criminally responsible for his acts.
During trial, Sakhanh stated that a military council had decided that the captured soldiers should be detained. A Legal Council had been constituted. The Council consisted of judges whom had previously served the Government of Syria, but had defected to the rebel group, called the Free Syrian Army. Three judges from the Council took part in the trial. Military as well as civilian witnesses testified. The trial was conducted from 5 until 6 May 2012. Although he was not present during the trial, Sakhanh heard about the charges made against the captured soldiers. It was well known that the Military Unit, under which the captured soldiers had served, committed grave crimes, such as rape and murder of civilians, which warrant the death penalty in Syria. From Sheikh Abo Suleiman, he was informed on 7 May 2012 that the captured soldiers had been sentenced to death and he carried out that sentence.
The District Court convicted Sakanh, and the Svea Court of Appeals upheld the conviction. The decision focused on the facts of how the rebel court was constituted and conducted, an inquiry that eroded Sakanh's claim that the system he acted within met fundamental judicial standards. To wit: 
[T]he District Court found that Suleiman’s Company was not part of the Free Syrian Army, rather it represented an Islamic and nationalist group. There were reasons to doubt that rebels in Idlib had sufficient control over the territory and population, which is a precondition for having the ability to establish courts. There were also serious flaws in terms of judicial guarantees. The so-called courts in the rebel-controlled territory were composed of a mix of imams and judges who had defected from the Government. These judges applied a mix of Islamic and Syrian law, depending on which rebel group had established the court. In this quasi-judicial system, mere fighting on the opposing side, in this case the Government, was punishable by death. There was no right to defence counsel for the accused. The possibility for the accused to mount their defence and to appeal was not granted. There was strong evidence that torture was used during questioning. The Court found that the procedures resembling trials did not meet basic fair trial guarantees. During the investigation phase, Sakhanh had explained to the police that the captured soldiers deserved to die because they had shot at rebel groups and the Free Syria Army. In other words, the captured soldiers were executed only on the basis of being combatants. Sakhanh also stated that he did not believe that captured soldiers should have defence counsel, as ‘they did not deserve that’. Considering these elements, the District Court held that Sakhanh had committed ‘grave breaches of the Geneva conventions’ by executing the captured soldiers. Based on the evidence, the Court found that it took only 41 hours from the time of capture of the soldiers until their execution. The rebel group published a film showing the incident on social media, namely, Youtube and Facebook, during which the word ‘revenge’ was used.
Congratulations to Professor Klamberg on this excellent work which should prod further discussion and scholarship.

* [14 July postscript]: The link to the article is now behind an OUP firewall. An alert reader pointed out that a similar article from the author entitled “Possibility of a Non-State Actor to Establish Courts, Issue Sentence and Avoid Criminal Responsibility for Acts that Otherwise Would Constitute War Crimes" is available on SSRN. 

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