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

zghazza@luc.edu

zouhairghazzal.com

 

 

 

 

 

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). Such cases were not, however, overtly adjudicatedas criminal cases per se open for investigation, but rather as proceduralfictions whereby it would be established that the victim died as an outcome ofa wound inflicted by a sharp metallic object, meaning that the crime waspremeditated (‘amd), thusclearing the way for the next-of-kin—the would-be inheritors—toproceed 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 apremeditated or deliberate intent to kill his victim, or else he intended noharm, and mistakenly killed him—are pivotal to understanding theactor’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 (alatal-qatl). If the tool was, say, a woodenobject, the “intention” would in all probability be classified as adeliberate act (qasd) but with nopremeditation to kill (‘amd),as only metallic objects with sharp contours would irrefutably prove that therewas a planned intention to slain the victim. Needless to say, the sole focus onthe tool of the crime brackets off the whole notion ofintention-cum-responsibility, as we understand it today, in conjunction withmodern post-Ottoman codes.

 

But the drafting and implementation of western inspiredcodes is one thing, and the proper understanding of their underpinningjuridical philosophy is quite another matter.[1]For one thing, the main purpose of the Ottoman Tanzimat, and in particulartheir second installment (1856-76), which initiated the drafting of modernNapoleonic codes, was to open up the Empire to Mediterranean and internationaltrades and policies. That led to the passing of adjudication—except forpersonal status—from the sharia courts to the newly instituted nizami courts, whose archives scholars have regrettably notpaid much attention to yet. The presence of a mandatory power in Syria andLebanon in the aftermath of the dismemberment of the Ottoman Empire hasdefinitely refined and deepened the implementation of the civil law tribunalsinstituted by the Ottomans in the 1870s, even though the non-availability ofthe judicial archival material for that period (1920-47) makes it impossible toassess the practices of these courts. Suffice to note for our purposes herethat the French mandate kept active all along the division instituted by thelate Ottomans between the sharia and the civil state-controlled courts, andthat, with the exception of a new land law in 1930 that regulated ownership inthe aftermath of the demise of the iltizam system, no major laws were drafted. Only when Syria received itsindependence did the major civil and penal modern codes see light, specificallyin 1949 during the brief dictatorship of Husni al-Za‘im, in what was describedas a “legislative coup d’état.”

 

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 with them: it is, indeed, in between the saying anddoing that action—hence the actor’s responsibility—unfolds.

 

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), an historical investigation into the courts’proceedings is thus to be limited to the last couple decades. In effect, sinceonly copies of the rulings are kept once the files are destroyed after theirgrace period is over, the access to and choice of individual cases cannotproceed systematically, but rather hangs on the goodwill and benevolence ofcourt staff, or of lawyers who are willing to share some of their material.Such constraining factors, rather than limit the scope of our research, shouldmake us even more alert at the construction of cases and the use of rules byactors.

 

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), honor crimes where women are usually the soletarget, and honor crimes among men, which are very common in rural areas, andwhich usually involve “collective disputes (mushajarajama‘iyya)” and inter-communalfeuds that could span over several generations. Rather than come up withgeneral rules and observations, I will focus instead on how the issue ofresponsibility concretely imposes itself in few criminal instances, among themin crimes where, for instance, the defense puts forward the claim that theaccused is either “insane” or “abnormal,” pushing thecourt to revise its ruling in case it approves such claims. Another instancewhere responsibility comes to the forefront is in so-called honor crimes whenthe assailant claims that he acted in retaliation for a slain kin member ofhis. Even though prima facie evidence tends to lean towards deliberate intent,if not a carefully planned crime, the participants, in conjunction with theofficial authorities, manage to diminish the crime to an act that was intended(qasd) though not deliberatelyplanned. It is at this stage that discussions regarding intentionality andresponsibility begin to surface, albeit clumsily, and get further exacerbatedby other related issues such as the direct or indirect involvement of minors orother clan members (in particular women, with the mother-as-instigator), whichmight have “instigated” and encouraged from a distance. At timesthe 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 “theindependent actor remains unknown (jahhalat al-fi‘lal-mustaqill).”

 

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 amounts to recovering his ahliyya: is he capable to stand trial and assume his legalresponsibility? Or is he ‘adim al-ahliyya, and hence legally incompetent? As incompetenceamounts in most instances to seeking medical expertise, usually at the requestof the defense council, the courts soon find themselves embroiled in a medicallanguage and in the dubious task of translating a medical vocabulary into alegal one. Upon closer examination, however, the medical expertise itself soonbecomes a matter of dispute, as the competence of various committees is subjectto debates. Let us consider a case where medical expertise was needed.

 

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.[2]

 

On 14 October 1979 the referral judge (qadi al-ihala) in Hama issued his report, which in the Syrianpenal law tradition constitutes the first preliminary synthesis of the caseprior to its transfer to the higher criminal court (Jinayat). The judge recommended not only to punish theassailant based on article 535 of the penal code, but also accused his fatherof instigation (tahrid) ofpremeditated murder (‘amd)based on article 216 of the code. In fear of assailments against the accusedand his family, his lawyer requested that the court hearings take place outsideHama, and they were effectively transferred to the first criminal court inDamascus. It was during the Damascus court hearings that the defense requestedthat its client be transferred to a hospital for medical evaluation on thebasis that he was caught with “madness” (musab bi-l-junun), which the court agreed upon. Over a one-year periodin 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, signedby the hospital’s director, and which claimed that “the perpetratoris suffering from schizophrenia (fisam) and he is not responsible (ghayr mas’ul) of his actions, and he constitutes a danger tohimself and public safety (al-salama al-‘amma).”

 

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[3](mazhar-ahu al-‘amm) he was underthe effect of major calming drugs. He thus suffered from a trembling in allfour parts [of his body] as an effect of the medications. It was also noticed,upon his interrogation, that he talked to himself, without concentration, noreaction whatsoever, and was indifferent to the world around him. Among thesymptoms that attracted our attention: total negativity, indifference, and lackof reaction, even though he admitted the crime attributed to him. He deniedthat he was afflicted with madness (junun), and when asked about his illness, he replied: it’s a merequestion of nerves (a‘sab).Based on what was stated, and based on the total negativity, indifference, andlack of reaction in the patient, we have unanimously decided thathe is afflicted with schizophrenia (infisam),and that his affliction is old enough, dating prior to 1979, and that hecommitted his crime under the effect of the sharp seizures that regularly hithim. For those reasons he cannot be held responsible for his actions,and he therefore constitutes a danger on public safety, and needs to be treatedin a mental institution. That’s our expertise.

 

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:

 

  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 moreaccuracy whether the accused the day he committed his crime was at thatparticular moment inflicted with a“mental incapacity” (naqs ‘aqli), it set an appointment on 23 November 1983 for afive-member committee[4]to assess the accused under the supervision of a court’s consultant. Whenthe accused was brought to the consultant’s office in the presence of themedical committee, he was reexamined once more, prior to the committee draftingits report.

 

[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 that would either incapacitate or limit hisresponsibility. After going through his previous life story and questioning himon matters relating to periods before and after the incident, it turned outthat his state of mind was perfectly sane (salim), and we wereunable to come up with any conclusion that would point to any severe mental orpsychic illness from which the possibility of committing any crime would beimputed, even though his angered type of personality may have contributed tothe crime, but that does not waver hisresponsibility. Moreover, he was not [at the moment of our examination] underthe effect of any drug, medication, or alcoholic beverages. That was theoverall opinion of the examining committee, with the exception of doctor M whoconsidered the patient in a quiet (sakin) state, but he was illwhen he committed his crime, and he still is, which means that he was not fullyresponsible of his crime, and that his responsibility does not add to a mere 70percent. That’s our expertise.

 

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 from the outside world. He is therefore consideredto be only partially responsiblefor his actions, and is considered a danger to himself and public safety, andtherefore in need to be treated in a psychiatric hospital. But even though thepatient’s state of mind has long been afflicted by his mental illness,several years prior to the crime, he nevertheless bears a 70 percentresponsibility for all what he did fromthe day of the crime until now. This means that the level of irresponsibility (‘adamal-mas’uliyya) attributed to him does not exceed the 30percent, and for this very reason he should be placed in a mental hospital sothat his symptoms do not develop any further, creating greater risks forhimself and society at large. That was the opinion of the majority of five ofthe doctors in the committee…as to doctor K [who dissented] he clarifiedthat the accused is now in a borderline state, and his responsibility for hisactions is therefore limited, but it would nevertheless be unscientific to determine a percentage for what hisresponsibility really is.

 

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, pushing his son and coaching him to kill thevictim, which means that the father is as much responsible as the son for thecrime.

 

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:

 

  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 caseand issued its ruling on December 1985. It decided to formally (shakl-an) revoke the defendants’ appeal on the basisthat their representative did not carry an official authorization to representhis clients. It also revoked the plaintiff’s appeal for re-assessing thepunishment on the basis that the Public Prosecution Office did not appeal thecourt’s ruling, thus leaving the plaintiff’s party appealing withtheir personal right, which renders the ruling valid from a criminal point ofview. (In contrast, defendants have the right to appeal their punishments.) Asto the other matters brought up by the plaintiff’s party, the cassationcourt 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 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) which may be subject to the death penalty, and theintended crimes (qasd) which aresubject to a lesser punishment. But as we shall see in our second case below,judges may stumble over how todetermine the difference between premeditated and intended crimes (not tomention accidental crimes): participants do their best in constructing what they mean by a premeditated or intended crimewhile documenting and indexing various descriptions of the murderscene. It follows then that legalresponsibility, which implies making someone legally responsible for an act(which might not have been performed by the actor himself), would bemeaningless without the proper work of contextualization performed by theparticipants—which means, above all, describing what happened fromvarious perspectives. In short, legal responsibility does not exist in theabstract, and becomes meaningful only when documented by the participants. Inconsequence, broad categories such as ‘amd or qasdachieve their concrete meaning inthe process of documentation.

 

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)” (article 230), it leaves all possibilitiesopen as to how “junun”ought to be diagnosed. Would, for instance, a medical approach to madness be satisfactory from a legalpoint of view? In order to reach the verdict “not guilty by reason ofinsanity,” the court requested from several medical committees (the lasttwo fell under its supervision) to determine whether the accused was insane atthe time of the murder, considering that aperson was not criminally responsible for an act if he was insane at the time.

 

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)—their due course, even though there is noexplicit clause in the post-sharia and post-Ottoman modern penal code for doingso. In similar vein, in all three reports the events regarding the allegeddefendant’s insanity were specifically vague. The depicted events thusleft open the issue of documenting the defendant’s insanity by theparticipants themselves: when, for instance, the defendant’s family homewas burned immediately after the crime, there was a presumption that the accused—due to a presumed mental incapacity—could not have acted on hisown, hence his father must have been the instigator.

 

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.[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 theirbeing-in-the-world with their common stock of knowledge even in societies withgreater institutional powers (political, economic and scientific). What istherefore “seen but unnoticed” (Garfinkel) will always constitutethe basis for daily conversations whose taken-for-granted undertones androutinized symbolic interactions prove necessary to minimize interference.

 

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.[9]Whenever a woman is the target, and once the assailant voluntarily giveshimself to the police right after the killing, the crime is generallyclassified as “a killing for honorable purposes (qatl bi-dafi‘sharif),” which grants the defendanta reduced punishment of a year to a year-and-a-half. There is, however, afairly large number of honor killings among men, which in the absence ofstatistics is hard to accurately nail down, and which the criminal courts donot label as killings for an honorable purpose. Judges have, however, oftenhanded out lower sentences for such crimes—going as far as to reducemurder charges to manslaughter (qatl qasd)—out of deference to so-called customary norms, even thoughrulings tend not to explicitly state custom as the cause for reducingpunishment. In effect, what commonly happens under such circumstances is asubtle documenting of the crime by the participants so as to reduce the directresponsibility of the assailant(s) in order to classify the homicide as anunpremeditated manslaughter (qasd)rather than as a premeditated killing (‘amd), avoiding in the meantime the possibility of thedeath penalty or life imprisonment. In line with the arguments propounded inthe previous insanity case, the idea that the penal code would determine in allcertainty the difference between an unpremeditated manslaughter and apremeditated killing is essentially incorrect. A more fruitful approach wouldbe to assume that the rules of law, as defined in the penal code, onlyestablish the legal framework through which the participants would act. Inother words, there is no a priori shared agreement, and common understandingsonly gradually reveal themselves through the documentation of the crime scene.Responsibility is therefore a constructed notion that reveals itself in thedocumenting of the case at hand by the participants.

 

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.[10]The six-page autopsy report details the location of the 13 bullets thatfatefully killed him. Khalid was what might be called a “potentialvictim,” someone who was targeted by his own cousins not because he didanything wrong or harmed anyone, but simply because what ought to have been theprime victim was unavailable at the time. A second victim “close”in blood relations was chosen as a replacement to the first, and that victimwas Khalid. Only a year earlier, in 1994, and in the village of al-Rami(province of Idlib), a fight—one of those quasi-regularones—occurred between Muhammad Khalid Zarzur and his cousin ‘UmarMuhammad Zarzur. As ‘Umar was stabbed to death, his brother Mahmud vowedrevenge, even though Muhammad was arrested and Idlib’s criminal courtsoon began its usual proceedings. The fact that in such environments statejustice proves “insufficient” and is often supplemented by apre-state type of justice, does not necessarily indicate that the apparatusesof the state are inefficient, at least in the sense of not attempting to bringthe participants to the negotiating table. What we probably have here is asituation where pre-state violence[11]constitutes an integral part of the normal functioning of society,[12]so that even compensation schemes (diyaor civil compensations arbitrated by the courts) matter less.

 

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” of violence, is best noted in one of those strangelyfamiliar 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 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) for committing a premeditative killing (‘amd) based on article 535 of the penal code. Thecriminal court followed suit and charged him in 1999 of premeditative killingand lifetime hard labor.

 

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.[13]The big change from Ottoman times, and the shift from sharia to civil law, isthat a crime is now perceived as a public concern, hence it is the obligationof the state to reveal the truth to the public in criminal matters, even if theparticipants decide to settle on their own, through, for instance, a diya compensation. Even though the victim’srelatives (at least one) usually sue the defendant’s party as part oftheir own private rights, thetask of gathering evidence goes to the police and prosecution. It is, ineffect, 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 courtsa representative of the prosecution sits on the courtroom’s“arch” (qaws) facinga three-judge panel in each one of the hearings. Since the prosecution takesthe side of the victims, the latter’s party is constrained, when it comesto bringing forth evidence, to what the prosecution needs. Once the case istransferred through the referral judge (ihala) to the criminal court, the judge acts as anextension to the prosecution, attempting, through the court hearings, to hammerover the existing evidence and bringing new elements to the crime, wheneverpossible. In effect, the essence of an inquisitorial system has the judge andprosecutor act as the same person, while private parties bring evidence only at the request of the prosecutor-cum-judge. Whenexamining police and prosecution depositions, not to mention the courthearings, it would therefore be of crucial importance to see how actors attemptto deploy their ownstrategies—in spite of all constraints imposed on them by police andprosecution—and what they are doing when uttering their statements. In effect, the constraints imposed onprivate parties in inquisitorial systems—at least compared to theaccusatorial/adversary systems—take a heavier toll in societies likeSyria where the state attempts to control the public sphere. More importantly,private parties are also generally constrained by customary norms of their ownmaking, some of which—like honor killings—owe their existence topre-state forms of organization, or more recently, to empire formations wherethe weakness and remoteness of the administrative center leaves social groupssurvive thanks to their own internal norms. Consequently, the loyalty of theindividual to the group considerably reduces the auto-biographical element indepositions, a factor that tends to perceive responsibility triggered bycollective undertakings.

 

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 they simply say, that matters. For example, theabove verbal exchange, as recorded on paper by a police officer, attempts toreduce oral utterances to their content. For the researcher, the real challengeis the ability to read intorecorded statements rather than simply reading them and understanding theircontent.

 

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) drafts his report and approves the transferal ofthe case to the criminal court. The referral report is particularlyimportant—perhaps its importance is unjustifiably overblown—simplybecause it constitutes the first preliminary synthesis of the case based on allevidence accumulated thus far. But the importance of the referral report,however, even exceeds its preliminary purpose of providing a synthesis, as itbecomes the prime document for future decisions, in particular the finalverdict. In effect, even though the criminal courts have all the power toconduct all the hearings they want and bring fresh evidence, and strike downallegations brought up in the police and prosecution depositions, there areoverall very few surprises once the referral report is drafted. Moreover, thereferral report de facto transforms the case from simply being a“criminal event” with all kinds of scattered evidence into a judicialartifact, 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 policedocumentation of the crime scene, the coronary report, lawyers’ memos, tothe examination of witnesses. The referral judge recommended that the criminalcourt prosecutes the defendant on the basis of article 535 of the criminalcode, namely a premeditated killing, which could lead to either the deathpenalty or life imprisonment with hard labor. To justify such a recommendation,the report extensively quotes the coronary report detailing the location of the13 bullets in the victim’s body; witness accounts present at the murderscene whose testimonies pointed to the fact that the assailant was not provokedby his victim, and the former pulled his gun and started shooting once henoticed the latter; and the assailant kept following his victim even when thelatter sheltered himself inside the Husrum home. But there was still thelingering issue of the assailant’s “original intent,”considering in particular the requirements of article 535: what are thecriteria for establishing a premeditated killing (qatl ‘amd)? The referral report picks up a common notion of apremeditated killing, which has circulated long enough in law books andprocedure manuals: “Considering that a premeditated killing is a specialelement 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 allmatters through a careful evaluation of possibilities, and then chose the pathof 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 thatsuch a definition of what a premeditated killing ought to be does not go veryfar, and that it can be flip-flopped in any direction, which is what attorneysand their clients typically do. There is no reason per se to a priori think ofa premeditated killing in terms of a thoughtfully planned and calmly executedkilling. What in practice happens, however, is that, when faced with ahomicide, participants document the crime scene in such a way so as to index, fromtheir own perspective, the differencesbetween a premeditated and intended killing. Such a strategy was deployed, forinstance, by the defendant in his first deposition: the day of the crime wasdocumented and indexed in such a way so as to led to the conclusion that therewas no deliberate planning from his part. Other witnesses, whether on the prosecutionor defense side, went through similar undertakings. It is then left to thejudge’s own discretionary powers to go through the final selectionprocess, and choose what fits best with the coming verdict. For the referraljudge, there was not much material that would conform to the definition heprovided for premeditated killings. In one instance, he quotes a witness whomet the accused a month-and-a-half before the crime: the witness allegedlysummoned the accused to seek a peaceful settlement with his relatives (aqarib) and conclude all matters peacefully, to which theaccused responded by saying that “matters only end once mybrother’s killer is executed, and that’s something that’simposed upon me.” Such a statement, the judge concludes, “points tothe fact that the defendant was indeed planning his retaliation for the killingof his brother.”

 

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) between the accused and his victim, and theaccused’s statement to one of the witnesses—that “mattersonly end once my brother’s killer is executed”—do not provethat the killing was premeditated, considering that the victim in this case wasnot the killer of his brother in the previous incident. As to the defendantshooting his victim and killing him with so many bullets, even thoughconstitutes 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, andthe conclusions that it drew were flawed.

 

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

[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] Alain Supiot, Homo Juridicus, “La raison humaine n’estjamais une donnée immédiate de la conscience : elle est leproduit d’institutions qui permettent à chaque homme de donnersens à son existence, qui lui reconnaissent une place dans la sociétéet lui permettent d’y exprimer son talent propre. Dès lors quecette identité n’est plus garantie par l’État, leshommes s’efforcent de la fonder sur autre chose : sur uneRéférence religieuse, ethnique, régionale, tribale, sectaire,etc..”

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

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

[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.