The Syrian Regime Is Pursuing Its Opponents Through the Use of a Loophole – Private Prosecution

After the Damascus regime successfully regained control of rebel-held territories in Syria, the number of opposition figures arrested skyrocketed. Yet, they were not arrested on charges filed by the state, as one might have thought. Rather, they were arrested on the basis of private prosecution charges – a judicial recourse in which, in this case, individual civilians supposedly seek justice from former rebels or activists for violating their personal rights. While the process is entirely legal, many Syrians believe the regime is behind the private prosecution charges, abusing a legal loophole to go after its opponents. Indeed, the traffic only flows one way: anyone seeking to bring a private prosecution charge against loyalist figures is certain to be harassed, intimidated or even detained themselves.

Two things make the regime’s tactic possible. Under the so-called reconciliation agreement, or “surrender deal,” with former rebels, the Russian military police that work under the auspices of the regime are meant to ensure that no opposition activist is detained purely for taking part in anti-regime activity. In reality, the Russians don’t always intervene against this. Next, the surrender deal does not prevent such opposition activists from being charged for other offences or in other ways. The result is that the regime is able to exact revenge against them through indirect means.

This, then, is one illustration of the perversion of justice in Syria, as meted out by the victors in that country’s war against former rebels.

It is extremely difficult to get a clear picture of the scale of this judicial abuse, due to the systematic lack of data and the secretive circumstances under which some arrests have taken place – when people are spirited away at checkpoints, for example. Civilians in former opposition areas first became concerned in September last year when hundreds of people in Daraa, in northern Homs province, and in rural Damascus were arrested on the pretext of legal action being initiated against them by other individuals. In December, reports from sources in Qudsaya, a town west of Damascus, claimed that the regime had a list of 50 local men wanted on charges ranging from property disputes to murder. Orders also went out last October to arrest 30 people in Sheikh Miskin and 100 in Rastan, on the same grounds.

Information culled from interviews and from local media suggest that most of these private prosecution charges were filed against former commanders and fighters who had surrendered. The fact that they have relinquished combat roles and returned to civilian life or joined pro-regime groups does not appear to have lessened the chances of charges being filed against them.

The second “most wanted” on the list are former civil servants who worked in opposition governing entities, such as local councils, courts and free police forces. Former civil defense volunteers, such as members of the White Helmets group, humanitarian workers and media activists are next, along with civilians with links to any of the above groups. The most common charge is murder, followed by extortion.

Normally, the legal process for pursuing a private prosecution is straightforward. The victim or aggrieved party files a complaint, and the relevant court issues an official arrest warrant that is executed by the police or the Criminal Security Services Agency.

However, multiple sources say the process is different in the recent cases in the former rebel-held areas. There are persistent claims of arrests being carried out without an official warrant or court order. There are claims, too, of arrests by political intelligence or air force intelligence forces, whose remit usually does not extend to criminal proceedings. In at least some cases, those arrested were detained in facilities used by those agencies, and not in ordinary civilian prisons. Multiple reports have also surfaced to support the belief that regime officials have been instrumental in encouraging civilians to initiate private prosecutions, which explains why the number of such cases has soared.

The impact of the use of private prosecution to settle political scores goes beyond undermining the prudential operation of state institutions. Allowing charges to be filed without investigatory evidence-gathering in the first instance has turned the judiciary into a tool for extortion or for settling personal rivalries. In Rastan in rural Homs province in southern Syria, one man reportedly has made allegations leading to the arrest of 67 people and has threatened 300 more with similar action. Many of those arrested, even though innocent, have been forced to bribe regime officials either directly or through lawyers in order to secure their release.

In contrast, supporters of the regime – whether combatants or civilians – are granted full immunity for crimes committed both before and throughout the conflict.

Such two-tier justice can only result in yet more division, more polarization and more instability for the country, even long after the fighting has ceased. The only way to avoid that outcome is to establish credible accountability and a fair judicial system that gives all victims, whatever their political affiliation, real justice – the kind that helps heal both the grievances of an individual and the pain of a community.

Haid Haid is a research fellow at the International Center for the Study of Radicalization at King’s College London. He is also a consulting research fellow of Chatham House’s Middle East and North Africa program.