{"id":4282,"date":"2014-02-03T15:07:53","date_gmt":"2014-02-03T20:07:53","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/nsj\/?p=4282"},"modified":"2014-02-03T15:08:21","modified_gmt":"2014-02-03T20:08:21","slug":"sharia-courts-move-to-the-battlefield-jabhat-al-nusra-opens-a-legal-front-in-the-syrian-civil-war","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/nsj\/2014\/02\/sharia-courts-move-to-the-battlefield-jabhat-al-nusra-opens-a-legal-front-in-the-syrian-civil-war\/","title":{"rendered":"Shari\u2019a Courts Move to the Battlefield: Jabhat al-Nusra Opens a Legal Front in the Syrian Civil War"},"content":{"rendered":"

By Corri Zoli*<\/i> and Emily Schneider**<\/i><\/em><\/p>\n

In the midst of some of the worst infighting<\/a> between Syrian opposition groups to date, al Qaeda Central leader, Ayman al-Zawahiri<\/a>, called on Syrian armed groups to unite, stating, \u201cyou are the hope of our Islamic nation in establishing Islamic governance in the lands of Syria, the chosen land of jihad.\u201d Aside from tactical aims, Zawahiri\u2019s recently released video<\/a> had twin effects: it revealed during the Geneva II Syrian \u201cPeace\u201d Conferences (on January 22 and 23-31) how serious the cleavages have become between rival jihadists in Syria\u2019s ongoing civil war; and it lent credibility to Syrian President Bashar al-Assad\u2019s otherwise hyperbolic claims that his country is beset by terrorists. Recent reports that al-Qaeda aligned rebels have gained control of Syria\u2019s oil fields<\/a> only deepen the sense that al-Qaeda is seizing the initiative in the Levant \u2014 and cutting ties<\/a> with some groups\u2014in the Levant.<\/p>\n

Al-Nusra as Strategic Player in the Levant<\/i><\/b><\/p>\n

These developments presage an emergent leadership style and strategy that has proven successful on this asymmetric battlefield. Abu Mohammed al-Golani, head of the al-Qaeda aligned Jabhat al-Nusra<\/a>, has become not only a consensus-building leader in the midst of Syrian chaos, he has made progress in political coalition building by pressing<\/a> opposition forces to establish an Islamic court to resolve their differences. In an audio recording released Jan. 7, 2014, Golani called for a ceasefire between armed forces\u2014jihadists and arguably moderate<\/a> coalition forces like the Islamic Front\u2014and blamed current infighting on \u201cincorrect policies<\/a>\u201d (by Islamic standards) adopted by the Islamic State of Iraq and Syria<\/a> (ISIS), a rival al-Qaeda-linked group based in Iraq also fighting against the Assad regime. Such statements not only echo<\/a> fighters\u2019 complaints<\/a> about ISIS, also known as the Islamic State of Iraq and the Levant or as-Sh\u0101m (or ISIL).\u00a0 They aid in the growing respect for al-Nusra, officially launched only in January 2012, as a disciplined force in a highly sectarian civil conflict and as \u201cfair arbiters<\/a> when dealing with corruption and social services.\u201d<\/p>\n

Jihadist infighting is, of course, nothing new in Syria, nor among Mideast insurgencies. Yet, Golani\u2019s statements come at a pivotal moment as U.S. defense officials increasingly doubt the capacity of rebel coalition forces to form a post-Assad government<\/a> and as the international community, particularly through the efforts of UN peace envoy Lakhdar Brahimi, tries to shepherd a transition process for Syria. What is also clear, however, is that rival<\/a> jihadist forces are engaged in the same process, trying to establish political leverage, albeit through military means. ISIS\u2019s involvement, with its recent successes<\/a> in Fallujah and habit of flaunting al-Qaeda Central orders, affirms the now generalized concern that jihadists will both polarize Syria and destabilize Iraq. It would seem that al-Nusra<\/a> sees itself as the most nimble of jihadists, and apparently Zawahiri agrees<\/a>.<\/p>\n

In fact, despite its own official affiliation<\/a> with al-Qaeda, al-Nusra is backing<\/a> other rebel groups against ISIS, causing yet another sectarian splintering of jihadist forces<\/a> within an already dizzying<\/a>ly complex multiparty civil war. Some analysts believe<\/a> al-Nusra (with its Syrian majority) welcomes neither ISIS\u2019s goal of merging Syria and Iraq into a single caliphate<\/a> nor its support for an epic global jihad beyond ousting Assad. Others note the rivalry between Golani and ISIS-leader Abu Bakr al-Baghdadi, including Baghdadi\u2019s recent refusal of Zawahiri\u2019s orders to leave Syria for his home turf of Iraq. What is clear is that al-Nusra is distinguishing itself among jihadists by pushing for a coalitionist approach to the Syrian power vacuum and by gradually subjecting Syrians to strict, purist Shari\u2019a rules over time. Most importantly, in meld<\/a>ing<\/a> religious interpretive differences and building an operational policy that translates into a viable strategy to defeat Assad, Golani is also creating a postconflict template using Shari\u2019a rule of law.<\/p>\n

Put another way, at issue in battlefield applications of Shari\u2019a is political maneuverability. Golani\u2019s idea of a battlefield dispute resolution mechanism is, at its core, politically pragmatic, all the better to leverage an Islamist endgame. Seasoned observers<\/a> know well this familiar tension in jihadists circles between political pragmatism and ideological purity, where pragmatists are often mistaken at first for moderates. In fact, Romain Caillet points out the irony that many moderates regard ISIS as the more radical group even though al-Nusra is \u201ctoday the official branch<\/a> of al-Qaeda in the Levant.\u201d Al-Nusra coalition efforts have succeeded in marginalizing ISIS in ways described by an Islamic Front representative recently to Al-Jazeera<\/a>: ISIS is \u201cguilty of the crimes and the arrogance of which it is being accused,\u201d and insists on \u201cacting as a \u2018state\u2019 rather than one faction among others,\u201d and, thus, will \u201cnot submit to conflict resolution through impartial sharia tribunals like others do.\u201d Another representative reiterated this point on Twitter<\/a>: \u201cWe do not accept that the jihad is reduced to one single faction, just as we do not accept that any faction names itself a state.\u201d In short, ISIS\u2019s heavy-handed approach has polarized<\/a> rebels, put off Syrians, and given al-Nusra an opportunity to redirect the conflict away from a combined Islamic state\u2014to a stricter Islamic normative approach in Syria, one that is worrying Syrian jurists and lawyers<\/a> alike. Though al-Nusra\u2019s pragmatism may be gaining ground, its costs are still being felt on the battlefield, with estimates of over 1,000 rebels killed in the last several weeks of infighting, according to the Syrian Observatory for Human Rights<\/a>.<\/p>\n

Shari\u2019a Content in Constitutions and Conflict Settings <\/i><\/b><\/p>\n

Our own research<\/a> in Muslim constitutions and modern conflict for all Muslim-majority states (defined by their membership in the Organization of Islamic Cooperation or OIC) indicates that though Golani\u2019s pragmatic wish for a Shari\u2019a court may seem like a stretch, it is neither unrealistic nor unprecedented\u2014both at the state level and among nonstate armed groups in conflict settings. In fact, many Muslim states utilize Islamic law (or Shari\u2019a) in their penal codes. Our examination of all 57 Muslim state constitutions using data<\/a>\u00a0that we collected over the last two years found that 13 Muslim states constitutionally require that Shari\u2019a constitute the main source of legislation. Another 3 states require Shari\u2019a as the basis of all laws, and an additional 4 constitutions state that the state is based on Islamic principles. Of these 20 states, 7 states have additional constitutional language that specifically requires all penal laws, regulations, or sentencing to be based on Shari\u2019a criteria. Syria is one of those countries, along with Iran, Malaysia, Pakistan, Saudi Arabia, Sudan, and Yemen. Moreover, 5 countries\u2014Malaysia, Mauritania, Pakistan, Saudi Arabia, and Yemen\u2014explicitly state that laws or decisions by legislative councils cannot be contrary to Islam, and Islamic law cannot be abridged by domestic law. Likewise, the constitutions of Egypt (2012), the Gambia, Iran, Jordan, Malaysia, Nigeria, Pakistan, and Saudi Arabia establish Shari\u2019a courts for general adjudication. In another 7 countries, the constitution requires legal practitioners or judges in Shari\u2019a courts to be Muslim and follow the Shari\u2019a.<\/p>\n

Scholars know that Shari\u2019a language in many constitutions<\/a> may be aspirational<\/a>, that domestic legislation and jurisprudence tell a different story<\/a>, namely, that constitutional precepts may not be enforced, and that prosecuting individuals by laws on the books may be rare<\/a>\u2014albeit not in all regions<\/a>. Nonetheless, there is something instructive about the role of Shari\u2019a in Muslim states\u2019 political culture<\/a> and identity and the fact that both Muslim governments and groups seek to frame basic laws and operating practices by Shari\u2019a norms. If reference to such norms were solely symbolic, states like Brunei<\/a> (2013) would not continue to add Shari\u2019a elements to their penal codes. Both Afghanistan<\/a> (2004) and Iraq\u2019s<\/a> (2005) recent constitutions also include provisions requiring legal practitioners and judges in all courts to be Muslim and to follow Shari\u2019a. In the case of Syria, if such legal gestures were meaningless, adversaries would not hold up Shari\u2019a\u2014and Shari\u2019a due process\u2014as a way to distinguish themselves, firm up their legitimacy, and build a better coalition to defeat Assad.<\/p>\n

Applying Shari\u2019a on the battlefield is even more complex<\/a> in light of the often controversial interpretations of the law applied under conditions of conflict. Ansar Dine and al-Qaeda in the Islamic Maghreb tried to implement a repressive form of Shari\u2019a<\/a> in Mali in 2012, for instance, that included executions for haraam<\/i> acts. Islamists had strategically helped the Tuareg rebels gain power in the country\u2019s coup, but then abruptly turned on them, seizing the north where they revealed their prioritized intentions in imposing<\/a> a purist notion of Shari\u2019a. Such strict applications of Shari\u2019a are also evident in other long-simmering civil conflict settings such as Sudan<\/a>, including after South Sudan\u2019s 2011 independence. In similar ways in Syria, the al-Nusra-backed Hayaa al-Sharia<\/a> (or Islamic Authority) operates an Islamic court from a hospital in Aleppo in which classical punishments\u2014lashes and executions\u2014are meted out for alcohol and drug use or theft. But, importantly, jihadist fighters selectively choose their battlefield rules, many times distorting Hud\u016bd<\/i> crimes (expressly listed in the Quran<\/i>), evading stringent Islamic rules of proof and evidence, and ignoring Islamic humanitarian norms that offer some of the world\u2019s earliest protections for human rights, especially in conflict settings (Quran<\/i> 5:32).<\/p>\n

There are also similarities between al-Nusra\u2019s political methods today and the Taliban\u2019s route to political power in Afghanistan in the 1990s. The Taliban succeeded in restoring order in areas terrorized by mujahedeen in part by implementing controversial Shari\u2019a norms. After the U.S.\/coalition intervention in 2001 temporarily displaced the Taliban, their return and resilience, as John Braithwaite and Ali Wardak<\/a> argue, was predictable, given the inability of intervening forces to develop political, justice, and security institutions. As Braithwaite and Wardak<\/a> show, insurgents in Afghanistan built legitimacy\u2014not by institution or nation-building\u2014but by implementing Shari\u2019a, by \u201crestoring order to dangerous, anomic rural spaces,\u201d thus, using legal norms as an \u201calternative path to legitimacy.\u201d Thus, while the U.S. rightly diagnosed Afghanistan up to the surge as insecure, in failing to ask early on \u201cwhat is working<\/a> around here to provide people security?\u201d policymakers and military advisors missed the loya jirga<\/i>, shura <\/i>councils, and even Shari\u2019a battlefield justice itself. Now, in Syria, al-Nusra is following the Taliban\u2019s lead by dismissing the larger, state-building systems espoused by ISIS in favor of localized, familiar system of Shari\u2019a in an approach that has been historically effective.<\/p>\n

In short, support for strict or purist versions of Shari\u2019a\u2014in uncertain, conflict-based, or transitioning environments\u2014may occur in inverse proportion to poor governance: where governance remains poor<\/a> or nonexistent, support for strict Shari\u2019a may be robust, as at least some means for enforcing ethical conduct. In the meantime, battlefield atrocities<\/a> under conflict-based Shari\u2019a may not only violate international humanitarian law but the Islamic laws of war<\/a>, as most reputable scholars note.<\/p>\n

*Corri Zoli is an assistant research professor at the Institute for National Security and Counterterrorism (<\/i>INSCT<\/i><\/a>)\u2013a joint graduate research center at Syracuse University\u2019s Maxwell School and College of Law. <\/i><\/p>\n

**Emily Schneider is a research assistant at the <\/i>New America Foundation<\/i> in the National Security Program<\/a>. She is a recent graduate of Syracuse University\u2019s College of Law.<\/i><\/p>\n","protected":false},"excerpt":{"rendered":"

Corri Zoli and Emily Schneider untangle the infighting between rival groups in Syria and the calls to use Shari’a to mediate the conflicts on the battlefield. 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