Version classiqueVersion mobile

The Crime of Writing

 | 
Zouhair Ghazzal

Chapter 7. When punishment is left to the judiciary: Kin wars between shared meanings and law

Texte intégral

  • 1 Carl Schmitt, The Concept of the Political, Chicago: Chicago University Press, 2007.
  • 2 Lisa Wedeen, Ambiguities of Domination, Chicago: Chicago University Press, 1999.

1From a number of select cases, though not exhaustively treated as in the previous Chapters, this Chapter raises the issue of the importance of “kin” as ahl, on the one hand, and the routinized violence that kin affiliations would necessitate on the other. It has become normative in the humanities and social sciences to perceive violence as contained within the state institutions, as if that kind of Hobbesian self‑containment would preempt its spread through the democratized (and depoliticized) social body. Thus, either “the legitimate monopoly of violence” by the state, as Weber posited, would, at least in democratic societies, self‑contain private violence in the social body, or else the failure of such containment would spread around, in civil institutions, damaging the very roots of civil society. Thus, in the concept of the political as developed by Carl Schmitt, politics assumes a concept of the state, and vice versa, around the “friend” and “enemy” division.1 However, Schmitt argues that in so‑called “liberal democracies,” a tradition that goes back to nineteenth‑century Europe, the takeover of politics by the state eo ipso implied a depoliticization of culture, art, the sciences—and society at large. When it comes to undemocratic societies, however, it is usually assumed that the state monopoly over violence is quintessentially non‑legitimate, in the sense that it never received public endorsement (e.g. through democratic suffrage), struggling for legitimacy by other means (cult of the leader, public ceremonies, the big Other of intelligence services which interpellate individuals even in their most intimate lives).2 Hence the state is not only (illegitimately) monopolizing violence, but in the meantime, robbing civil society of its political identity—the killing of politics via the shared public ceremonies which interpellate individuals through a process of faked political participation.

  • 3 See also Chapter 9 on land and crime.
  • 4 Which makes more sense in its pluralistic form of ḥurūb ahliyya, “civil wars,” implying not one war (...)

2What is important for our purposes here is that for a nondemocratic country like Syria, where the presence of kin is strong, what happens when the state illegitimately monopolizes violence and kills politics along its way? On the one hand, kin violence and its rituals of honor and clan belonging precedes the modern nation‑state; hence is unrelated to the existence of the latter, even though, as this Chapter shows, kin violence is reshaped by the state, in the same way the state is affected by kin violence to the point of contaminating entire institutions (e.g. the venerable Republican Guard composed of a majority of Alawis). In the “Syrian Revolt” that ravaged the country in 2011–12, the question was raised as to whether Syria was in full‑fledged “civil war,” which implies that violence was primarily an outcome of internalized societal divisions along kin, class, ethnic, or regional lines, rather than simply a product of a “society” protecting itself against unruly violence from the top, that is, the state and its machinery of violence. Needless to say, the “Syrian opposition” in all its factions (Muslim Brothers, Salafis, nationalists, liberals, communists), opted for the second safe alternative, namely, that violence was an outcome of excessive state violence, hence “society” was protecting itself against such unruly violence, which de facto politicizes the “Revolt” as a quintessential act of legitimate civil action against the illegitimate monopoly of state violence. The alternative would be to trace back social fracture, as this Chapter does,3 into the infinitesimally small—the nonpolitical violence already contained in the strategies of kin groups for the symbolic survival of their affiliations. State violence would only sit “on the top” of the routinized violence of kin, exacerbating it through its court institutions, or by creating institutions within the state where kin is all what matters. One should note at this unique and exceptional historical juncture that the notion of ḥarb ahliyya,4 which is routinely rendered in foreign languages as “civil war” or “guerre civile,” has nothing “civil” into it: the Arabic ahlī implies a strong commitment to both kin and ethnicity (or the ṭāʾifa, as a “confessional (sectarian) alliance” which manages the religious identity of a group), understood as strong ingredients which attach an individual citizen to region and locality above everything else, including a presumed loyalty to the state. “Civil war” by contrast stands as the Westernized and idealized rendering of ḥarb ahliyya, or ḥurūb ahliyya, namely, as a war among “civil” groups where kin, clan, or ethnicity would not matter that much. We must therefore admit that, in such societies, ahl and ṭāʾifa do matter a lot, both of which stand in opposition to the “civil” components of society, namely, class formations and the politics of the state as illegitimate violence.

3As Talal Asad remarked regarding “the institution of feud,” which is partially based on Evans‑Pritchard (1940) monograph on the Nuer,

  • 5 Talal Asad, Genealogies of Religion, Baltimore: The Johns Hopkins University Press, 1993, 92.

Anthropologists who have analyzed the institution of the feud have shown that there is no reason why, as long as the proper rules are followed, the inscription of justice may not in principle continue indefinitely. In a conflict between two feuding kin groups, the successful wounding or killing of an opponent defines at once the satisfaction of justice and the needs for redress. The feud is a permanent process, not an event. This can be rephrased by saying that the determination of guilt by the strict accusatorial system resides not in the victory of truth but in a truce between equal powers.5

  • 6 Pierre Clastres, Archéologie de la violence. La guerre dans les sociétés primitives, Paris: Édition (...)

4This institution is to be found where a state judiciary is yet inexistent, hence arbitration and payment of compensation by “the guilty party” might settle matters for a while, but nevertheless maintains a state of war between contending kin parties, even if the parties concerned were more distant agnates, e.g., distant cousins. Pierre Clastres would argue that it is precisely the absence of state that such kin organizations were attempting to perpetrate.6

5Notwithstanding the never‑ending violence cherished by anthropologists, the question raised in this chapter is what happens when the state intervenes through its judiciary bureaucracy to quell the violence between kin groups. In other words, unlike Evans‑Pritchard’s Nuer, kin violence in Syria has ceased to exist on its own, as if the state is not there. When the state does exist, with all its civil law legislation and might, what does it do to “the institution of feud” among kin groups, which for the most part have managed to survive outside urban centers? Do the two modes of producing evidence and guilt run autonomously from one another? Or does the logic of the state predominate?

6When shared meanings of honor and shame are overlooked, with crimes staged like individualized acts of revenge, bypassing norms of kinship, punishments tend to be severe, usually with three to ten years of penalty, once the “attenuating circumstances” kick in. In general, the Jināyāt must assess each situation not only in conformity with the rule of law, but more importantly, its rulings must be “congruent” with the norms of the communities in which such crimes occurred.

  • 7 Idlib Jināyāt case 117/2000.

7[C7–1] To underscore this point further, I would like to begin with statements from a sentencing of the Idlib Jināyāt in 2000.7 When ruling over a case that involved multiple killings from the same clan in the 1990s, the Jināyāt manifested its appreciation of the logic behind the honor killings in such environments. As if acknowledging the pacification strategies deployed by the belligerents themselves, the Jināyāt noted that the defendants had previously, after the killing of one of their kin in the early 1990s,

  • 8 Could be translated as the required objective context.

wrongly sued the [current] plaintiffs in an attempt to push them towards a peaceful settlement. The instigators were then handed to the peace tribunal (maḥkamat al‑ṣulḥ) at al‑Danā, but a year later the then plaintiff was killed at the hands of one of the brothers of [the current] plaintiff Yusuf. The peace judge at Danā had issued a ruling to drop the case (al‑takhalli ʿan al‑daʿwa) because the specialized objectivity (al‑ikhtiṣāṣ al‑mawḍūʿī)8 did not apply here, considering that the act that was the subject of the lawsuit was a crime that involved a killing. During the trial taking place in this courtroom, it became clear that a peace took place between the two parties, while the accused denied what was attributed to him.

8A statement in the final passages of the ruling added that,

when the member of any family has been the subject of a killing, it is understandable that some members of his kin would succeed at retaliating on their own, while others would leave punishment to the judiciary.

9How such decisions are self‑regulated is not always obvious. Suffice it to say that many of the killings, as in this situation, involve a blending of both stances: the belligerents attempt—and often succeed—at retaliating on their own and seek justice through court procedures. It could well be that they reach a point where court justice would become more “economical,” in particular when material compensations are sought, or when further killings would be too costly to bear at least on one of the parties; or that one or both parties have given up hope towards peaceful settlements, preferring instead, as their last ditch, to throw their case in the hands of the judiciary.

How did you do such a thing?

10At interviews a narrative unfolds, which is framed as much by the questions as by the answers themselves. Not only does each question “direct” the interviewee towards a possible answer, but a single question might, in the best of circumstances, “propose” an answer, if not directly impose it. That is particularly true when the examiner is an authority figure—policeman, prosecutor, or judge—and the interviewee is a suspect in a murder trial. While the examiner in such circumstances might have his mind set as to the role of the suspect and his or her involvement in a particular crime, the interviewee‑suspect is usually aware that any statement could be quoted by other authorities, increasing the risks of making him or her an even more serious suspect. More important, however, is the nature of the narrative that unfolds from interview sessions, and how its particular structure offers an alternative to traditional narratives.

  • 9 Which is fairly common in honor killings, as a kin strategy to avoid the conviction of the Jināyāt, (...)

11 [C7–2] Musa b. ʿUmar Musa (b. 1977) was not yet fully 189 when he shot to death in 1995 a cousin of his in retaliation for the shooting of his own brother a couple of years earlier. Since such honor killings tend to be earnestly confessed, the prosecutor needs to determine whether the killing was planned beforehand, and whether there were other “participants.” The interview was conducted the same day of the killing, of which the following excerpt.

Q1. You have been accused of premeditated killing (qatl ʿamd) against the victim ʿAli Musa with prior planning. What do you have to say? I advise you to tell the truth.

A1. At 7:00 this Monday morning of 27 February 1995, I woke up and went to the olive garden. I had oiled the water pump and took it with me on my tractor. On my way I saw the victim ʿAli standing on the al‑Danā road, close to the Bakri shop. I parked the tractor on the main road and headed towards ʿAli, and told him: “Why are you still standing there?” As he tried to run away from behind, I took my 7mm gun and started shooting at him. When he fell on the floor, I kept shooting at him. I cannot remember how many shots. I then drove home with my tractor. My mother was sitting in front of the house. She had strong objections to what I just did: “How did you do such a thing when your brothers were not even present?” I went inside and waited until the police came and arrested me. I gave myself up with the 7mm gun with which I shot the victim ʿAli.

12In his reply, the accused attempted several things at once, typical of honor killings among males: 1. His first concern was to underscore that there was no premeditation, that it was an impulse of the moment. He had met his victim “accidentally” on the road without any prior knowledge that he would be there. He was offended that his victim—considering the history of feuds and killings among cousins of the same clan—did not run away as soon as he saw him coming in his direction. The offense soon turned into anger caused by the circumstances of the moment itself. It was the victim’s fault since his attitude was one of pure provocation. He therefore deserved his fate. 2. The mother was out of the loop, at least officially, so were the brothers (or cousins). 3. The offender did not run away, quietly waiting at home for the police to come: those who commit honor killings do not run away like ordinary cowards. They are not afraid of justice; their fears are rather internally oriented towards their kin.

  • 10 This was the case, for example, in the case of Sabiha Dalʿun (C5–5), where the mother had allegedly (...)
  • 11 Warwick Tie, “The Psychic Life of Governmentality,” Culture, Theory & Critique 45(2) (2004): 161–76

13Why does the mother play a key role, whether acknowledged or denied? In the real or symbolic absence of the father, it is the mother which emerges as the protector of shared values. It is that distance between what the local customs mobilize, and what the official Law of the nation‑state can impose, which guides what social actors can do (or are prohibited from doing). If “the Law” refers to the superego, it is the mother that personifies it. As soon as Musa killed his cousin ʿAli, it was towards his mother that he came for benediction. The mother, waiting at the house’s porch, has that parodic image of a person which personifies both kin and shared values. The orientation of the mother’s question, which was not one of pure consternation, Why did you do such a thing?, but, How did you do such a thing when your brothers were not even there?, signals the strength of kin cohesion, reaffirmed through murder. If the presence of the brothers should be of any concern, it is because honor killings are decided in common, between mothers and sons, hence the role of the individual actor, which here was a minor, tends to be further minimized.10 In similar vein, the victim is targeted not as an individual, but as a member of a group, or more accurately, it is the group at large that is targeted rather than its individual members. Clearly then, the mother’s attitude was one of an endorsement, one that encouraged transgression. But here transgression was, however, conducted vis‑à‑vis official state Law, not the customary laws of the locality which favored such retaliations. By receiving his mother’s blessing, ʿAli only transgressed official law which frames such acts as homicides rather than honor killings, hence state law refrains from endorsing honor among men as it does with the honor killings of women. The reason is that in societies where kin plays a preponderant role in the cohesion of society, women maintain that symbolic function of exchange among groups, which in itself is violence exerted against women. In the honor killing of a woman (C6–1 & 6–2), the act of transgression, in the form of murder, only reinstitutes the routinized violence that is already there, and which serves the symbolic function of exchange. In both instances, therefore, that of honor killings against women and men, transgression retroactively becomes what it already‑always was, that is, the cause of law. Transgression is that unconscious supplement that emerges retrospectively in the course of Law’s gaining legitimacy, a supplement which is the source of enjoyment.11 In the Foucauldian transformation between the classical age and modernity, the discursive formations, normalization régimes, and self‑reflexivity programs all share that power to normalize the newly emerging self‑reflexive subjects: such power that individualizes docile subjects neither emanates from a particular center, nor is it located anywhere. More importantly, in the Foucauldian analysis of power the normalized subjects lose precisely their self‑reflexive power as subjects, which poses the problem of transgression and resistance to power. In developing societies which are our concern here, where kin and honor are normative, the state is only attempting from afar to emulate the Foucauldian bio‑power practices, for example, in providing defendants with a psychic dimension which their kin and locality would have ignored. Consequently, transgression actualizes in relation to state law through shared values; which poses the issue not of a subject docile to bio‑power, but one docile to kin norms: genuine transgression therefore implies transgressing kin norms.

Are you kin affiliated?

14A great deal of the violence in rural areas (the triangle of Aleppo, Bāb al‑Hawa and Idlib up to Jisr al‑Shughūr) and some of the informal neighborhoods belting Aleppo, which for the most part are clan‑related conglomerations with ramifications to the countryside, consists of feuds where individuals get caught in collective incidents—what the courts refer to as “collective fights” (s. mushājara jamāʿiyya). Land, water, status, wealth, and other resources could be at stake here. But, even if that is the case, such indicators seldom come to the forefront of a lawsuit, and are often documented as no more than background data by local and state authorities. What rather emerges as foreground are the different strategies of control and intimidation among rival clans. Violence serves as a necessary rite of passage to maintain or enhance the status of groups in their control of resources. If status attribution is the result of violence, power relations among groups and families could be upset by a sudden spike of violence and the failure to address it properly. When, for instance, a group member is shot and killed, his relatives are faced with the crucial issue of proper response. Retaliations are, however, neither necessarily immediate nor planned beforehand, and could span for decades, where a descendant acting on behalf of an offended elderly relative (who may not be there anymore) takes as target another “innocent” descendant from the opposing party (C7–4). At times collective fights ensue, leaving behind trails of bloodshed, and even if the courts manage to identify suspects, they nonetheless receive the label of “incidents with unknowable individual actors” (jahhālat al‑fiʿl al‑mustaqill) from the courts, making it difficult to pin down individual suspects. Such routinized violence is, to be sure, common in both tribal and rural areas, but the novelty here is that it is addressed through a modern court system. Rather than simply check whether the law is effectively “applied” or not, a researcher’s attention should focus on how the crime scene is narrated and constructed by the actors themselves; how competing representations of the crime are at stake, each claiming to be in conformity with the relevant articles of the penal code. In sum, we are interested in representations of the law through the eyes of competing interpretations of various protagonists. The other interrelated anthropological phenomenon is the violence that unfolds within a community, which aims at honor and reputation: from the viewpoint of the state, there may be nothing criminal in all this—as long as no physical damage occurred. But for the researcher, what is unfolding is of great importance, since a crime would be incomprehensible outside an anthropological perspective.

  • 12 Idlib Jināyāt 319/1999.

15 [C7–3] Consider the following case in which the plaintiff claimed that when the defendant saw him walking nearby, he started, in response to ongoing feuds among their two families, insulting him personally, pulling a gun and shooting at him several times, wounding him gravely.12 The defendant for his part claimed that when the plaintiff noticed him outside his own home, he followed him with a stick and started beating him. When he fell down, the offender still did not stop, so he pulled his gun and shot his opponent in self‑defense. Such case is stricto sensu one of attempted murder, and were it not for the battery of feuds between the two groups, it would have been one of those banal acts of violence which the court would have formally processed. But in small rural communities, individuals seldom act on their own behalf, in particular when a retaliatory killing is at stake. The local and state authorities soon found themselves enmeshed in a battery of familial disputes whose relevance to the case was at times disputed. But what is deemed irrelevant and of no legal consequence by the courts may be of great significance for the researcher. In effect, the protagonists provide their investigators with an array of links which they judge to be of significance to the incident in question, hoping in the meantime to turn the sentencing in their favor.

16The defense described its opponents as “a strong family who totally control and run the village, and the large number and wealth of its individuals de facto makes them the only representatives of the village and its authority (sulṭa) at the same time.” The plaintiff and alleged offender, the memo went on to say, “is known for his domination, assaults, and an ability to turn the truth upside down in order to achieve his own evil purposes, such as his flubbing of the official doctors’ consultations [requested by his investigators] and his contradictory statements.” However, even though the shooting occurred on June 1989 in the village‑farm of Shuyayka (in the vicinity of Jisr al‑Shughūr), the Idlib Jināyāt only reached its verdict on December 1999. It found the defendant guilty of attempted murder and sentenced him to seven‑and‑half years with hard labor, which it reduced to 3 years and 9 months, in addition to a material compensation to the plaintiff amounting to SP300,000 ($6,000). Even though in those 10 years dozens of witnesses had to be interviewed on both sides, their large number would not fully account as to why that trial took that long. For one thing, the conflict clustered around two alternate scenarios of the incident: in one, the defendant pulled a gun on the plaintiff as soon as he saw him in public and shot him; in the other, the defendant acted in self‑defense, and pulled his gun only after he was severely beaten by the plaintiff. For another, most witnesses did not bring alternative scenarios, and their interviews were in general straightforward, with no attempt to get more out of them. As to why it took that long, an explanation must be thought in the very nature of what the courts euphemistically label as “collective fights,” which in reality are full blown clan feuds among rival factions. As the courts find themselves struggling not to aggravate such conflicts, they bet either on time factors that would promote self‑regulated peaceful settlements, or else that the large number of witnesses would in itself give that opportunity for both sides to construct their own narratives: the statements of witnesses are part of make‑belief system, in which the views of the protagonists are expressed through third parties. The legal fiction of the witness as representing only him(her)self would be possible only in so far as they are “unrelated” to either party. In the deposition forms filed by the prosecution, each witness must beforehand determine his or her “relation” to either party: either in terms of kinship and/or prior relationship (ʿalāqa) or “knowledge” (maʿrifa) or “enmity” (ʿadāwa). When for instance a witness states that “I know both parties, but have no kin affiliation and no enmity to either one,” his statements may or may not carry more weight than other kin‑affiliated witnesses. In short, the courts cannot under such circumstances stand as the omniscient authorities that they would like to appear: time goes on as representations are pieced together, negotiated, and reworked out again and again.

  • 13 The second name, that of the main defendant, seems to have been added later, as an outcome of inter (...)

17Let us begin with an example of how witnessing works. One of the main witnesses, a young woman (b. 1974) from the same family as the defendant, and who lived in Latakia, claimed to have witnessed the shooting. To the prosecuting judge she introduced herself as someone who “knows only the defendant Siham [the defendant’s daughter], and the defendant himself accused of the shooting.”13

The day of the incident I was milking cows with my maternal cousin the defendant Siham at their [farm] house—the house of the defendant Ahmad [the main accused]—at the time when the latter went out with a water pot to the toilet. While we were milking a cow, soon after Ahmad [my maternal aunt’s husband] went out, we heard people screaming. We looked in the direction of the sounds—considering that we were working outside the house—I saw a man whose name became known to me later—ʿAli Zini [the plaintiff]—holding a stick, with which he started hitting Ahmad; the latter begged his opponent to stop, but he did not. Ahmad then managed to run away towards the mountain but was followed by four persons: Ghazi Zini who had a gun, his brother who was carrying a stick, and Nasr and Faysal each with a hunting gun. ʿAli Zini then managed to catch up with him and he beat him up for a second time. It was at this instant that Ahmad pulled his gun towards his assailant and wounded him. ʿAli fell immediately down…while the other armed fellows began shooting up in the air.…

  • 14 The case had originally 8 defendants.

Q1. When I asked you at the beginning, prior to uttering your statements, whether you knew the defendant or defendants,14 but you replied that you only knew the defendant Siham. In your witnessing you mentioned the name of Ahmad Nuri Maʿla—that he is the husband of your maternal aunt—and we asked you whether you knew him, and you answered positively. We noted that in your deposition. And then later when you were describing what you saw in the field, you mentioned several other names of defendants—among them Ghazi and Faysal—so how come did you first claim that you knew no one and then you identify all those names?

A1. I knew the defendants Ghazi, ʿAli Zini, Nasr and Faysal, from their appearances only (bi‑l‑shakl).

Q2. Since you knew them from their appearances, why did you not say so from the very beginning, before you mentioned their names?

A2. You did not ask me about them.

Q3. Before you took oath, I—as a judge—identified you all the names of those involved in the lawsuit one by one, and asked you whether you were kin affiliated to or had any knowledge of or animosity towards any of them, but you said ‘I only know Siham.’

A3. You did not mention the names to me.

Q4. You mentioned in your deposition two names—Nasr and Faysal—and said that they changed their hunting guns with Russian guns. Who are Nasr and Faysal? Are they from the Zinis or the Maʿlas?

A4. From the Zinis.

Q5. You said that we did not identify to you the names of those involved in the suit, but in your statements you mentioned individuals that are not involved in the suit, any comment?

A5. Nasr and Faysal were at home, and when they heard that their uncle was hurt they went out to the scene of the incident.

18The entire line of questioning centers not on the content of the deposition per se, but on various “affiliations” that the interviewee might have had with any of the people she was able to identify. Such “affiliations” were in fact numerous: kinship comes first to mind, but then the circle widens to people that the witness might have “known” or whose name and/or appearance is familiar, or towards whom she or her family had nurtured any animosity. If the interview, drafted in the judge’s own handwriting, runs for three pages, while most other ones do not exceed the single preliminary descriptive section, it is because a “problem” emerged as to whom the witness “knew” beforehand. She was, however, smart enough to remind the judge that there were various types of “knowledge” at stake here, one of them was knowledge of a person from his appearance. In other words, the game is between seeing and identifying: the act of seeing is much broader and richer, if not more confusing, than the simple act of identifying by name. Or, to put it differently, the identification process reduces the richness of seeing to some of its bare elements—that of naming people, prior to turning them into potential suspects; and the witness was precisely avoiding such juridical reductionism. If, as the common saying goes, seeing is believing, for the judge believing comes in conjunction with affiliation, knowledge, and animosity, all of which attached to kin. The puzzling question as to why police, prosecutors, and judges are not more aggressive than they ought to be, generally opting for the basic minimum in an interview, has its answer in the fact that what investigators really care about is not what witnesses have to say or hide, but in how reliable they are: the “closer” they are to the parties in conflict, the less value their witnessing bears. Consequently, witness depositions are lined up based on their degree of “closeness” to the parties in conflict, while their content remains for the most part unchallenged: closeness takes lead over accuracy. But what judges typically refer to as “knowledge (maʿrifa)” is more a process of basic understanding based on the community’s shared meanings, which are always negotiated and taken for granted as such, rather than “known.” In the above interview, what makes “understanding” possible between speaker and hearer is that we, as members of the same community, “know how” to identify people by name; that is, we “understand” what we are talking about, hence we do not need to explicitly state what our assumptions are.

19My dad’s murderer is in prison, I’m therefore going after his brother

  • 15 Case‑file from the Idlib Jināyāt in 2001–02.

[C7–4] When the defendant [Muhammad Taysir, b. 1985, still a minor (ḥadath) when he committed his crime in December 2001, and described as “illiterate” (ummī) in the prosecution files] was asked [by the prosecutor general] whether he committed the crime attributed to him, he responded positively. And then added, by way of an explanation, that two months ago, Mustafa Urmi killed my father Muhammad Nuh Quminasi, amid family feuds. From that time our family has been preparing its retaliation through careful arrangements and planning to kill someone from the family of Mustafa Urmi. Since Mustafa was serving a prison sentence, we decided to go after his brother Muhammad Urmi who worked as a minibus chauffeur for a company on the Idlib–Saraqib line. The decision was made thanks to my cousin Basil Quminasi, with others in the family, in particular the brothers and cousins Jamal, Taha ʿAbdul‑Qadir, Najib and Yahya Quminasi. But it was indeed Basil who had made all the planning, and a week ago he purchased two guns, one for me and the other for his brother Firas [also a minor]. Two days ago [6 December 2001] I came in a Hyundai van with Firas and Basil, who was doing the driving and to whom the van belongs, to Saraqib. Firas had two 9‑mm guns, one for him and the other for me. Basil too had a 9‑mm gun. We headed [from Faylun] to Saraqib where the victim Muhammad Urmi worked as driver, but we did not find him. Saturday morning on 8 December 2001 at around 10:00 we headed again for Saraqib in the same van, and I got back my black 9‑mm gun from Firas. Once we got near the minibus garage, we saw there the victim Muhammad Urmi cleaning the windshield of his minibus. Our driver Basil left the two of us near the garage—we were both hooded with red scarves—he told us before leaving: ‘Shoot him, and then go to the police station and surrender.’ He made a tour with his van around the garage, while I managed with Firas to sneak into the building. Once we saw the victim Muhammad Urmi washing his minivan’s windshield, we circled him from the eastern side of the building, and I managed to shoot him several times on the head from the back. He immediately fell on the floor. When I realized that some of the garage drivers were attempting to come close to us, I shouted: ‘If someone comes close, I will fuck his sister! Those folks have killed my dad, and for his memory I am retaliating on his behalf.’ I kept shooting at the victim Muhammad on his head, but I am not sure whether the defendant Firas had shot in the direction of the victim. I nevertheless saw him shooting in the air to disperse the crowd that was gathering. I think that I managed to shoot the victim in his head three or four times. I also heard a couple of shots coming from the west, probably from the gun of Basil Quminasi who was in his van near the garage, then managed to escape north. I then headed with Firas, as Basil had summoned us, to the Saraqib police station, but while retreating, I did shoot a couple of times in the air out of fear that someone would approach us. At the station we surrendered to the police, who took us back to the crime scene for purposes of verification. I feel sorry for what I did, and I ask your forgiveness. Saraqib, 8 December 2001.15

20When his partner and cousin Firas (b. 1984), also a minor, and only a year older, was interviewed by the same judge, he practically reiterated word‑for‑word what his cousin had already stated, with little offhand variations, only substituting brother for cousin and vice versa. Which points to a careful orchestration of such crimes, not only from the perpetrators, but also to a certain extent from the police and judicial authorities. Not that any evidence would be deliberately fabricated, even though that could well happen, but more in the sense that such retaliatory acts tend to be perceived as group actions, and portrayed as such by the actors themselves and the police. “Someone” had to be killed in retaliation for a past offense—in memory of the dead—and the identity of the target did not matter much, as long as it was affiliated to enemy territory. When this “someone” is finally shot to death, every witness of the crime scene is hurdled with sexual innuendos: “I’ll fuck your sister!,” which places male machismo and its vulnerability at the forefront of the killing.

21Retaliation is a must even if state justice has accomplished its duty, which does suggest that unless retaliation is kin based, originating from the victim’s kin, it loses its meaning. State justice only runs in parallel to what custom already dictates, not on the top of it. It remains to be seen, however, how state justice “regulates” custom, and whether it forces it into new directions: more specifically, how customary norms apropos honor killings are re‑codified in legal communication within the binary legal/illegal normative division.

22Decisions are made and coordinated beforehand rather than improvised. That is not only important for the planning of the act itself, but regarding its representation to the police and judicial authorities once the murder has been committed, as it has to be represented by the perpetrators themselves as a cohesive action emanating from a well thought out decision‑making process. Such a cohesiveness is played on both sides, by the perpetrators themselves, and by the police and judiciary: for instance, in the two independent depositions by the two minors, they were very much meant as look‑alike, word‑for‑word, but such texture could have been the outcome of the perpetrators themselves, who had decided beforehand what to say to police and prosecution, or else constructed by the latter in their “editing” of the oral statements (which are never fully recorded).

23Minors are used by their elders for the act itself, while the planning goes for the elders. The use of minors is generally designed as an attempt to escape the pitfalls of justice and receive a lesser penalty. In honor killings the culprit gives himself up immediately to the police, as a way to distinguish himself from the common lot of murderers. He is not someone who would hide or conceal himself as other killers would have done under normal circumstances. The crime has to be made public as an explicit act of retaliation, not necessarily though against a particular individual, but more against the group represented via the individual. In our case here, for instance, the victim had for all purposes nothing to do with the crime perpetrated by his brother a couple of months earlier. As the killing of a singled out person de facto transforms itself as a rivalry among clans, the individual ceases to be important and is transubstantiated by the logic of family retaliation. When Muhammad Taysir, the main protagonist from the Quminasi clan, who was avenging his deceased father, addressed himself to the little crowd in the aftermath of his killing the minibus driver, he made the killing of his dad sound like a collective enterprise, unrelated to the person whom he had just murdered a moment ago: “Those people have killed my dad,” seems to be equating the person he just killed with his kin group, even though the victim, for all we know, may not have even participated in the original crime.

24Everyone seems to be proxy for someone else—even that murdered person who was not responsible for the crime that his brother had committed a couple of months earlier, and for which he had been serving a jail sentence. The assailants were proxies for the family and its sense of honor. Had Muhammad Taysir acted therefore on his own, without that benediction and material support from his brothers, cousins, and uncles, his act would have been perceived as a lonely murderous act of no value for his peers. In other words, it would have dishonored him completely and defeated its purpose. All the “participants” had to be declared as such from day one, as the two assailants did in their depositions to police and prosecution: without hesitation they have identified all members from their own family who were “partners.” “Partnership” is a broad term which denotes all members who were either morally supportive of the perpetrators, or else those who, like Muhammad Basil, provided them with logistical and material support, and who drove them to the crime scene with clear instructions. Some were thus interrogated for being simple instigators (muḥarriḍīn), while Basil was the hardest to pin down, as his role was more than just an instigator. This last point would turn out the most decisive for the development and unfolding of the case, as Basil, who was under custody from day one, would deny his participation in toto. The whole case therefore centered around his effective participation—or in the legal jargon, for having been a “partner” (sharīk) to the two minors—while his brother and cousin were subjected as minors to different juvenile procedures.

25Such representation of violence points at how much the individual matters far less than the family to the point that even the perpetrators were first identified under their father’s name: they are the sons of so‑and‑so. Moreover, the list of perpetrators—even though only one, possibly two, did the effective shooting—was quite long—at least in the initial stages of the investigation. Even though the referral judge’s report would eventually clear off three of the six names initially accused by the victim’s father, family feuds formed the center stage of the dossier. While going through such honor cases, we therefore need to take into account: (1) How does modern law come to grips with family feuds: do the two effectively “intersect” and meet somewhere in between? (2) Does modern law effectively impose itself on honor killings, or does it find itself gripped into a situation where honor has to be effectively taken into account, and hence the law must be tailored to that effect? (3) Do procedures end up different between a regular homicide and an honor killing? (4) Does family—and hence the number of “participants”—legally matter, or are entities like family and clan treated as if they were “individual” entities? What do legal categories like “participant,” “partner,” and “instigator” effectively mean in honor killings, when the list of so‑called participants could be effectively quite long indeed?

Potential victims

  • 16 Idlib Jināyāt ruling 95/1999, revised ruling on 12/20/2000, Naqd ruling on 1/22/2001.
  • 17 Pierre Clastres, “Archéologie de la violence. La guerre dans les sociétés primitives,” Libre, 1 (19 (...)
  • 18 Nicolas Journet, “Aux origines des guerres, ” Sciences Humaines, 47 (2005), 8–12 ; J. Haas, ed., Th (...)

26 [C7–5] Khalid Zarzur was a married law student at Aleppo University in his early twenties when he was shot to death in 1995 by cousins of his.16 The six‑page autopsy details the location of the thirteen bullets that fatefully killed him. As if one bullet was not enough, the magic number of thirteen was a message delivered to the opposing clan: we are after you with vengeance! Khalid was what might be called a “potential victim,” someone who was targeted by his own cousins not because he did anything wrong or harmed anyone, but simply because what ought to have been the prime victim was unavailable at the time. A second victim “close” in blood relations was chosen as a replacement to the first, and that victim was Khalid. Only a year earlier, in 1994, and in the village of al‑Rami (province of Idlib), a fight—one of those quasi‑regular ones—occurred between Muhammad Khalid Zarzur and his cousin ʿUmar Muhammad Zarzur. As ʿUmar was stabbed to death, his brother Mahmud vowed revenge, even though Muhammad was arrested amid Idlib’s criminal court beginning normal proceedings. The fact that in such environments state justice proves “insufficient” and is often supplemented by a pre‑state type of justice, does not necessarily indicate that the apparatuses of the state are inefficient, at least in the sense of not attempting to bring the participants to the negotiating table. We are into a situation where pre‑state violence17 constitutes an integral part of the normal functioning of society,18 so that even compensation schemes (either as diya or as damages arbitrated by the civil courts) matter less.

27Mahmud was therefore compelled to retaliate. But against whom? The original culprit was at trial and serving his prison sentence, while his brother Mustafa was overseas and working as a teacher in Saudi Arabia. Mustafa’s son Khalid, who was then a law student, became the de facto faute de mieux target, even though he was totally unrelated to the previous killing. Since Khalid’s parents were living in Saudi Arabia, his regular visits to the village were for the sake of his grandparents and in‑laws. The absurdity of such artificially maintained controversies and the perseverance of a “forme élémentaire” of violence, is best noted in one of those strangely familiar accounts by the defense lawyer, amid charges of premeditated killing:

[In 1994] a fight took place between Muhammad Khalid Zarzur and ʿUmar Muhammad Zarzur as an outcome of a sudden controversy. The latter stabbed the former once with a knife which caused him a hemorrhage that eventually led to Khalid’s death. The relatives of the victim, specifically his brother (now the defendant in this case), instead of retaliating against the killer or one of his children or one of his brothers who work and reside in the village, opted instead to kill the brother of the killer Mustafa (now the plaintiff), for simply being a teacher, and to kill also his son Khalid, for being a university student, while openly boasting their vendetta on several occasions. [italics added]

  • 19 Hence had voluntarily dissociated himself from his original kin‑locality, what eventually became th (...)

Since the plaintiff Mustafa was a teacher in Saudi Arabia, the relatives of the victim, in particular the defendant (Mahmud), was determined to and planned for killing the student at Aleppo University Khalid Zarzur, the son of the plaintiff, in spite of the latter having had rented a room in Aleppo:19 (1) The defendant had openly stated that he would kill the victim Khalid and that he was obligated (mulzam) to do so. (2) Knowing that his victim came to the village to buy some foodstuff, he began stalking him and kept him at close sight; even though some intervened and proposed to forgo his retaliation he refused to listen. (3) The morning of the big (Muslim) feast [in 1995], the victim arrived early to the al‑Rami village to visit his grandparents, planning to return to Aleppo in the evening; that evening he said goodbye to his grandparents and waited for a microbus, in the company of Husam Zarzur and Ahmad al‑ʿUmar, on the main road. (4) Once the defendant realized that his victim was in the village, he prepared his gun and rushed home to bring his minor brother Bassam with him to the crime scene, having provided the latter with a gun. When leaving home they crossed their maternal uncle Ahmad al‑ʿUjayni, who had just come back from Ariha, informing them that the victim was waiting for a microbus at the main road. The uncle and his brother drove the two culprits on their three‑wheel motorbike to the main road close to where the victim was standing. (5) The defendant then approached his victim pointing his gun towards him, but when Ahmad al‑ʿUmar noticed him he begged him not to shoot; he nevertheless initiated the shooting, but when the latter ran away he followed him to the home of the Husrum family, located 100 meters from the main road, he and his brother Bassam kept shooting at their victim, emptying their guns on the victim’s body. (6) Since the defendant premeditatedly killed his victim he was charged by the referral judge for committing a premeditated killing (ʿamd) based on article 535 of the penal code. The criminal court followed suit and charged him in 1999 of premeditated killing with lifetime hard labor.

28Generally in cases of honor killings among men the courts would not go as far as the death penalty or life imprisonment. But as the defense council noted in his address to the Idlib criminal court, the assailants chose the “wrong” victim: as there was no “valid” reason per se to target a young university student who was unrelated—except by family lineage—to the crime of the previous year, any sympathy towards the assailants would not have persevered for long. In fact, there are unspoken rules, which the courts assume are an outcome of deeply rooted customs, which regulate the logic of honor killings and govern the degree of “closeness” that the victims ought to have to assailants of previous crimes. For example, a person targeted as potential victim in crime B ought to be “close” to the assailant in crime A, in the same way that the assailant in B should be “close” to the victim in A. But the assailants in this case (one of them was a minor, and his role remained disputed), in retaliation for the death of their brother a year earlier, opted for an innocent cousin of theirs. Such acts could backfire, setting alarm bells in the community, prompting courts for tougher punishments. What the courts do under such circumstances is to pass over the “honor” element, which it usually does without much fanfare, treating the case as a regular homicide. Hence the severe punishment as stipulated under article 535 of the penal code. But under pressure from the higher cassation court in Damascus, Idlib’s criminal court had to revoke a year later its initial verdict, which in itself is an indication at the unsettling nature of honor killings.

Parsing the narrative threads

29The “evidence (adilla)” section in the 1996 referral report lists a total of 19 facts, based on police documentation of the crime scene, the postmortem, lawyers’ memos, up to the examination of witnesses and other matters. The referral judge recommended that the criminal court prosecutes the defendant on article 535 of the criminal code, namely premeditated killing, which could lead either to the death penalty or life imprisonment with hard labor. To justify such recommendation, the report extensively quotes the autopsy detailing the location of the thirteen bullets in the victim’s body; witness accounts present at the murder scene whose testimonies underscored that the assailant was not provoked by his victim, with the former pulling his gun and shooting once he noticed the latter; while the assailant kept following his victim even when the latter sheltered himself inside the Husrum home. But there was still the lingering issue of the assailant’s “original intent,” considering the peculiar requirements of article 535: what are the criteria for establishing a premeditated killing (qatl ʿamd)? The referral report picks up a textbook definition of premeditated killing:

Considering that a premeditated killing is a special element in homicides, it must be dealt with clearly and proven independently. It consists in the actor of the crime having thought his crime, planning all matters through a careful evaluation of possibilities, then chose the path of crime calmly, with contained emotions, independently of strained sentiments, then prepared for what he planned to do with all the needed tools at hand, prior to committing his crime calmly and thoughtfully.

30One can see that such a definition of what premeditation ought to be does not go very far, that it can be flip‑flopped in any direction, which is what attorneys and their clients typically do. Should a premeditated killing be thoughtfully planned and calmly executed? When faced with a homicide, participants document the crime scene in indexing, from their own perspective, the perceived differences between premeditated and intended killings. Such a strategy was deployed, for instance, by the defendant in his first deposition: the crime was indexed in such a way so as to lead to the conclusion that there was no deliberate planning from his part. Other witnesses, whether on the prosecution or defense side, went through similar undertakings. It was then left to the judge’s own discretionary powers to go through the final selection process, and choose what fits best with the coming verdict. For the referral judge, there was not much material that would conform to the definition he provided for premeditated killings. In one instance, he quotes a witness who met the accused a month‑and‑a‑half before the crime: the witness allegedly summoned the accused to seek a peaceful settlement with his relatives (aqārib) and conclude all matters peacefully, to which the accused retorted, “matters only end once my brother’s killer is executed, and that is something that is imposed upon me.” Such a statement, the judge concludes, “points to the fact that the defendant was indeed planning his retaliation for the killing of his brother.”

31But even though three years later in 1999 the criminal court endorsed the referral report, accusing the defendant of premeditated killing, condemning him to life imprisonment, with material compensations to the victim’s family, while keeping the death penalty at bay, the Damascus Naqd, however, 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 by both the referral judge and criminal court], failed nonetheless to provide adequate arguments for its ruling, since the provided evidence is insufficient in that regard. The existence of hostility (ʿadāwa) between the accused and his victim, and the accused’s statement to one of the witnesses—that “matters only end once my brother’s killer is executed”—do not prove that the killing was premeditated, considering that the victim in this case was not the killer of his brother in the previous incident. As to the defendant shooting his victim and killing him with so many bullets, even though constitutes enough evidence to indicate that the killing was deliberate (qaṣd), does not prove that the killing was premeditated. Which shows that the evidence that the court has accumulated is not enough, and the conclusions that it drew were flawed.

32With the higher court revoking the ruling of the lower court, the Idlib court commuted in 2000 its verdict to deliberate manslaughter, with 15 years of hard labor, and a million pound ($20,000) compensation to the victim’s relatives.

Relatives are always a surprise

33When a polygynous husband carries three wives, each wife is referred to as the ḍarra of the other, and each one should keep alert for a surprise. Strictly speaking, a ḍarra is a fellow wife of a polygyny, or the husband’s woman, and when a man is sharing more than one wife at a time, the wives are referred to in relation to one another as ḍarra. The first wife is therefore her husband’s wife (or woman), and she is also the ḍarra to the second and third wives respectively. The trouble begins when one is accused for the murder of another.

  • 20 On the importance or irrelevance of auto‑biographical elements for the case‑file and the verdict, s (...)

34 [C7–6] Insaf, the youngest of Ahmad Ziyadi’s three wives, was from day one the main suspect for killing her elderly ḍarra in Muʿarra (province of Idlib) in 1999. Having provided the police her full and unconditional confession, she was taken into custody and incarcerated. What she left behind were repetitive accounts of the crime scene that she had reiterated with very little variations first to the police, the investigating judge on two separate occasions, and through numerous court appearances. What is therefore left of her are official documents with very little auto‑biographical elements.20 Unlike Ahmad’s first wife ʿAyyush, which like her husband was born in 1961, Insaf was 17 years younger. She was therefore of another generation, and for that matter was probably closer to Ahmad’s children from his first wife than to her two ḍarras.

35A judge questioned her in Muʿarra, beginning with the traditional question that “You are accused of premeditatedly killing Walida Jiha based on article 525 of the penal code, what do you have to say?” Referring to the evening soirée in which her brother and his wife were invited the night of the killing, Insaf notes that,

  • 21 Later statements in depositions and court hearings confirmed that alcoholic beverages, whisky and a (...)

…at around 9:30 p.m. after I boiled the tea I went to the room of the victim Walida to get some tea cups,21 and also to nag her regarding all those bad things she has been saying about me in front of all people. I knocked at her door and found her in her pistachio‑colored sleep outfit. I told her ‘You have no right to disseminate all that talk against me,’ to which she retorted that ‘if you are really honest you would not have imposed yourself as XE "women:<1E0D>arra" ḍarra just like that.’ A word from me, and a word from her, and we found ourselves battling one another. We were both on the floor, and at some point I was on top of her, at another she was on top, until I pulled her head with her hair and hit it hard on the floor. She lost consciousness. I said to myself that my husband, once he would know of the incident, would divorce me. I took a look at the room next to her bedroom, and noticed a hammer [the hammer, which was used at the crime scene, was shown to her, and she did identify it], which I picked up to where Walida’s body was lying. I started hitting her on the head and skull many times. I then left the room with the hammer in my hand in the direction of the toilet located in my brother’s home. Then went back to my husband’s home to entertain our guests that night. Before that I had washed my hands and face…When our guests left after midnight I went to bed with my husband who was angry at me after the fight we had in the afternoon. But I managed to cheer him up, as we were lying in the same bed, and we had sex: ‘I came to him as a woman would to her husband’…

36In a memo addressed to the Idlib Jināyāt, Insaf’s counsel pressed on the issue of premeditation. Since there was that quasi‑certainty that his client committed the crime, only the issue of premeditation was left lurking: Was it premeditation or a deliberate act that was “improvised” that night of February 16th? The lawyer argued that, considering that the hammer was already present in the victim’s bedroom, and that Insaf went there in the first place out of necessity to bring tea cups for her guests, who had been invited that afternoon by her husband, she could not have possibly planned her act beforehand. In short, it was la colère du dernier moment. Premeditation, ʿamd, argues our lawyer—and here he follows the usual textbook line of reasoning among attorneys in Syria—implies that “the actor acted in cold blood, with premeditation, and outside the effects of anger.” Insaf’s act by contrast “was the product of its moment.” The lawyer was in effect responding to a memo issued that same day by the DA’s office in which it was argued that Insaf’s behavior that night was the outcome of “extreme hatred and jealousy,” and that the defendant was afraid that the victim who knew a lot about her and vicious habits would soon reveal her secrets to her husband. The DA’s representative therefore pushed for a maximum punishment as stipulated in article 535 of the penal code, which implies at its minimum lifetime incarceration, if not the death penalty.

Murder and the dynamics of kinship

37It was known that the crime must have occurred on the night, possibly morning hours, of 16–17 February 1999, and that up to the end of that year Insaf slowly matured as the only suspect. Early suspicions towards her husband Ahmad, either in terms of direct responsibility or at the very least as “partner,” must have been laid to rest by mid‑1999 when the prosecution exonerated him from any wrongdoing, or at least made the request that he should not stand trial.

38Thus, even though the blood‑type conflict between that of the victim and the stains found on the defendant’s clothes, made no sense at all and found no logical explanation, everything was back then pointing towards the culpability of Insaf. When the Jināyāt opened its hearings at the end of 1999 and early 2000, even Insaf herself reiterated in court her early confessions to the police, prosecution, and investigating judge. But even though, as the saying goes, confession is the master of all evidence (al‑iʿtirāf sayyid al‑adilla), it bears no value unless corroborated on its own by further independent evidence, that is, evidence “outside” the confession itself. That could be anything from accounts by witnesses on either side (prosecution or defense), or forensic evidence, or other confessions by possible witnesses and suspects.

39By early 2000 there was that certainty regarding Insaf, even though the blood mystery remained unresolved, and the court’s burden hinged on whether the murderous act was premeditated. Had it not been for Insaf’s sudden reversal by mid‑2000—all of a sudden declaring that she did no do it and that her husband was the master organizer—the Idlib court would surely have pushed for a guilty verdict by summer 2000, probably under article 533, avoiding the death sentence. The verdict would have been appealed, and the Damascus Naqd would have probably upheld the Idlib verdict by early 2001.

40Needless to say, Insaf’s sudden reversal had upset all plans, as the case rested solely on the accused’s initial confession—not much else. The court refrained from releasing its verdict, recommending that the case be reinvestigated. Witnesses were called again and again, and by the end of 2000 most of them went through a second round of interviews, including, of course, the two main suspects, the husband and wife.

41Insaf’s reversal, however, did not seem to have had much of an impact on the Idlib Jināyāt, besides reappraising their investigation and summoning most witnesses for another round of interviews, which did not bring anything tangible enough for that turnaround. But what is more interesting is that the presumed reversal witnessed a split between the public prosecution office with the Jināyāt over a couple of issues, delaying the conclusion of the case until the very end of 2003, only to bring it to where it stood back in 1999.

42Following the prosecutor general report in summer 1999, in which the premeditated scenario was recommended, the second comprehensive report came from the referral judge in Idlib. Such reports, which push the case for the higher courts for a verdict, also provide for a preliminary synthesis as to where the investigation stands in its early stages. But in spite of the fact that the referral reports come early on in the judicial process, and may have been inaccurate on facts, they do survive remarkably well, to the point that later reports would look in hindsight as mere variations on the same theme.

43The referral report follows the exact same logic as that of the prosecutor general, even though by that time (September 1999) the public prosecution office which became more certain of its handling of the case, had little doubts about the accused’s guilt, hence there was no need to go through the long laundry list of “witnessed items” that would stand as “evidence” either individually or collectively. In effect, the referral report turns out to be more focused and concise, with only ten items listed as “evidence” pointing towards the accused’s guilt.

44The verdict came on March 2002, three years after the crime. In its attempt to avoid the death penalty or lifetime incarceration, the Idlib court argued that the elements of premeditation were missing:

Premeditation implies that the criminal had well thought of her crime and of every detail… then planned and executed it with a serene mind and calm spirit… But as far as this file is concerned, facts show that the defendant was neither in a peaceful state of mind, nor well balanced. Witnesses have pointed that Insaf had a troubled spirit, broken down nerves, and distressed emotions regarding the victim Walida, which affected the way the crime was handled as well as its timing. The crime had in effect been conducted at the same time as the evening party in such a way that each one of the invitees became suspicious that something wrong was going on. The murder had left visible scars on Insaf’s face, resembling to ‘I’m a killer!’ banner, while it would have been wiser to postpone the execution when everyone went to bed, so that no one would become suspicious. For that very reason the court ruled that premeditation was out of question, which leads us to believe that the accused’s act was deliberate (qaṣd), pursuant to penal article 533.

45The court’s other main arguments were as follows:

  1. Insaf’s husband Ahmad used to occasionally beat her, because he was suspicious of her poor behavior and moral character. One such occasion was the afternoon of 16 February 1999, which may have aggravated Insaf’s jealousy towards Walida, perceived as the better treated of the three wives.
  2. The age difference between the second and third wife was 17 years, which at one point favored the new wife Insaf because she was the youngest. But as soon as Walida was back, and upon Ahmad’s decision to equally divide his time between the two, Insaf’s instability increased.
  3. The blood‑type incompatibility was probably caused by the fact that the clothes were not found and seized immediately. That delay prompted someone to temper with evidence and stain Insaf’s clothes with blood, not realizing the blood type of the victim and that of the defendant were incompatible. There were several possible suspects here, one of them could well be Ammun, the wife of Insaf’s brother, who overtly disliked the accused, and who was accused by Insaf of having entertained a relationship with her husband Ahmad.
  • 22 Apparently the notion of “attenuating circumstances” had its origins in the French penal law of 183 (...)

46When the court opted for a 12‑year sentence with hard labor, it did so on the thesis that, first, the crime was not premeditated, and, second, that “considering that the defendant is a woman, the court decided to grant her the appreciative attenuating circumstances (al‑asbāb al‑mukhaffifa al‑taqdīriyya),”22 which reduced her sentence to 12 years from the original legal requirement of 15. She was also summoned for SP600,000 ($12,000) of compensatory damages to the victim’s heirs.

Witnessing the everydayness of kin, violence, and sexuality

  • 23 See, Chapter 1.

47In the triadic institutional structure between performer–victim–witness, the performer in homicidal crimes is no one else but the killer, while the witness would act as a Third Gaze “audience” towards which the crime was oriented in the first place. In the traditional honor killings examined in a separate chapter,23 the performer would legitimize violence as a preemptive strategy, as a way to “save” the young female victim from further dishonoring her family. The killing would therefore receive its legitimization on two complimentary grounds: to save the woman–victim, and to save the family’s honor; the latter is therefore written on the female body, and protected by men (a role acknowledged by the penal code). Moreover, the woman–victim, now permanently silenced, having broken her honor, is post hoc represented as a perpetrator of (sexual) violence.

48In the brief sexual encounter between Insaf and her husband, which allegedly took place in the hours following the crime, at a time when husband and wife were both implicated as suspects, the representations of sexuality would not permit that uncanny juxtaposition between sex and death. The alleged act was therefore represented in various memos as an unlikely one, along the vein that had it happened, as Insaf alleged, her husband could not have possibly erected because he had just murdered his second wife; and in the husband’s version, his wife made him an offer that night, which he had reluctantly accepted (he was after all tired, amid a night entertaining guests, probably even managed to kill his second wife), even though he did manage to report her “unnatural behavior,” an indication that she may have done it. The irony here is that what cannot be explicitly represented in court documents is very much alive in daily practices: the association of death with sexuality, where the female’s lust for sex could lead to her death by a relative.

49In a society where women associate their own individual freedom with enduring silence and death, and where men live in the fear of being publicly dishonored—by women—what role is to be attributed to witnessing? What are witnesses supposed to do? In the present chapter we have addressed such questions in relation to the cases at hand, where witnesses were not “outsiders,” in the sense of situated outside the kin relations of either performer or victim. In effect, what is unique in the triadic structure in honor killings is the closeness of all three parties, so that even the witnesses were kin affiliated with performer and victim. As the power of witnessing tends to be associated more with “trust” than “truthfulness,” and since trust is more in sync with the persona of the witness than it is with the judicial process, what happens to that crucial element of trust when the majority of witnesses were kin affiliated? The situation proves so delicate that, notwithstanding gender roles, the mapping of kin could prove crucial: the reactions of witnesses to the violence of the killing may vary based on their location to the victims and their kin relations, a position which may affect their own views of violence, sexuality, and death.

Wouldn’t it have been simpler?

50One of the witnesses, identified as Amina (b. 1965), which had been re‑questioned by the prosecution in 2001 upon the reopening of the trial, told the investigating judge in Muʿarra that Insaf had allegedly asked her the morning when the body was discovered, “If the government (ḥukūma) were present, would they have collected the fingerprints on the victim’s body?” And when Amina retorted that she did not know much about such things, Insaf pursued her questioning further, “If the government comes over, and they see all this blood pouring from the victim’s head, would they still be able to collect the fingerprints on the victim’s body?” Whether this story is pure fabrication or not does not matter much, as it stands well as an anecdotal evidence for that unique encounter. First of all, it tells us something about an infamous woman by the name of Insaf Ziyadi, which, had she not been accused of killing her second ḍarra, would have gone into oblivion. It was, indeed, that uncanny “relation” with the judiciary—which Insaf identified purely and simply as “the government”—that an unknown individual, described in the official documents as tortured, sinful, immoral, and wicked, achieved—at least for her small community of villagers—an iniquitous status. As Michel Foucault would say, power individualizes, hence individuals become abstracted from their communal shared meanings. The judicial apparatus steps into a small village community to investigate a murder. In a community structured on the family, where the “economy” is kin oriented, a member of the village is all of a sudden targeted by an apparatus which is a product of the modern nation‑state, and which can only operate through individualization—separating the individual from his or her community, simply because in the eyes of the nation‑state they formally all are individual citizens. When, for instance, a court finds that an individual is guilty of a criminal act, he or she would be stripped of their “civic rights.” Only individuals have civil rights, not groups, families, or tribes, which modifies the rule of the game between private and public, and we can detect that unease in the all too sudden shift in the testimonies of witnesses. As the afternoon and evening of 16 February 1999 have been recounted from myriad perspectives by witnesses, the private lives of individuals become a public matter, textualized in court documents, transmitted from police to judges and courts to various judicial authorities. The life of an unknown individual is meticulously analyzed, commented, subjected to careful judicial and medical expertise, and then, at the very end, a verdict is announced. But with all that documentation, it is as if each case rests solely on that un‑said, which mysteriously lurks in the background, beginning with the very act of murder, which is glossed over in a juridical jargon of the sole purpose of a “just” ruling; or that Third Gaze which posthumously gets hold of the crime, which pushes the crime away from its dualistic structure of perpetrator and victim to outside “audiences” pursuing their final judgments, creating a triangular assessment between perpetrator, victim, and audience.

The kin who surprise us

51Property and kinship are collective systems of representation that structurally organize relations between persons. Were it not for such collective systems there would be no relations in the first place. The concept of property posits a social relation between holders and non‑holders, while kinship posits a relation between wife‑givers and wife‑takers, husband and wife, parent and child.

52In similar vein, crime relates persons through kinship and property. First of all, the accused in our last case, who was her husband’s parallel cousin, was already related by birth to the Ziyadi clan, thus her third marriage to her cousin came as surplus to other persons from other families, beginning with her two ḍarras. The crime in question, whether in fact committed by the accused, as the court thought it was, or not, reshuffles the representations of kinship and property in this small peasant community of laborers and workers. As witnesses textually self‑create representations of their community, kinship receives some of its most concrete and practical representations, while some of the daily routinized violence and sexuality is represented through the tortured and fragmented speech that witnesses routinely deliver to prosecutors, lawyers, and judges. Were it not therefore for the crime itself and the apparatuses of power that handled it, none of that would have ever existed.

53As to the other crimes in this chapter, they may prima facie look like senseless exercises of pure retaliation by youngsters whose eagerness for violence was less an outcome of concern for their elders than a conduit for the development of self, masculinity, male virility and machismo, and sexuality. In other words, they look no different from homicides committed in the passionate spirit of righteous slaughter, where problems of bounding the self receive full attention, and which were examined in other chapters in this book. Even though such an assertion shares its grain of truth, it remains nonetheless that the problem of the self among youngsters is in such instances bound to the elders and kin. That is to say, the spirit of righteous slaughter is not that of a humiliated individual, atomized in an urban setting, with no links to a tradition and community, dissociated from family and clan. So what difference does it make that the righteous slaughter is not the outcome of an individualized decision‑making process, but is only “representative” of a group mentality? What is unique in the crimes in this chapter is that the process of individualization of youngsters is processed through kin, not outside clan relations. There is therefore no point in pursuing the false sociological abstraction that those youngsters would either discover their subjectivity outside the normative values of their clans, or else remain fully integrated within the shared values of the latter. If our cases prove anything it is indeed that all elements of self‑consciousness must go through the rituals of kinship, which at their extreme imply sacrificing an “innocent” life via a murderous act of self‑affirmation. Such crimes, however, even if commanded by the group, they nevertheless establish the murderer as an individualized person whose fate is determined by a verdict outside the clan’s norms. In short, the socio‑symbolic order of kinship would not operate, in the political framework of the nation‑state, on its own, as it did under the Ottomans, but within the rough boundaries concretized by the latter. On the other hand, the nation‑state, in its inability to control its own territory, in the corruption of its bureaucracy, in its overt violence, cult figures and mass ceremonies, may exacerbate the socio‑symbolic order of communities, towards which the judiciary would feel powerless.

54Second of all, crime, like kinship and property, implies an exchange, as the murderer, through court action, exchanges material compensation—that is, property—with the victim’s kin or family. Usually compensations come twofold: one which is material, specified in the verdict in terms of cash compensations in lieu of damages inflicted on souls and bodies, and parallel compensations which consist in offenders serving for public sentences (hence their presumed integration back into society, which implies repentance, or acknowledgment of the morbidity of their criminal endeavor). The amount of time in modern penal systems should in principle not be arbitrary, that is, it ought to be adequately “measured” in relation to the damage created to the victim’s kin.

55But as crime in a small closed community re‑relates already related persons, this in itself constitutes a major form of exchange, placed in parallel to property: herein lies the difference with “anonymous” crimes in large urban milieus. It rearranges their relations in ways that may not be totally expected and fall outside the usual realm of doing and relating things, even though it expresses the already existing routinized violence in society, as witnessed by no one else but the witnesses themselves. A crime therefore relates individuals (persons already related through kin) through an event. They all have to redefine themselves—as witnesses—in relation to both victim and crime scene. They would then have to relate to one another in ways that are not just necessarily limited to kin and family. Through speech monitored by the power of the judiciary, witnesses construct narratives that would organize their relations in time.

  • 24 Veena Das, “Sexual Violence, Discursive Formations and the State,” Economic and Political Weekly, S (...)

56In the triadic structure of performer–victim–witness the performer is the one who committed a hideous crime, and whose act has de facto become public, transforming the criminal into a public persona which is scrutinized, and re‑valued through an outside audience which acts as a Third Gaze, as witnesses do the work of narration, transforming crime into an element of spectacle. Yet when violence is present as spectacle it is the body and its representations in space—the territoriality of the body—that convey meaning through representations of sexuality and death.24

Notes

1 Carl Schmitt, The Concept of the Political, Chicago: Chicago University Press, 2007.

2 Lisa Wedeen, Ambiguities of Domination, Chicago: Chicago University Press, 1999.

3 See also Chapter 9 on land and crime.

4 Which makes more sense in its pluralistic form of ḥurūb ahliyya, “civil wars,” implying not one war, but multiple conflicting ones.

5 Talal Asad, Genealogies of Religion, Baltimore: The Johns Hopkins University Press, 1993, 92.

6 Pierre Clastres, Archéologie de la violence. La guerre dans les sociétés primitives, Paris: Éditions de l’Aube, 1997.

7 Idlib Jināyāt case 117/2000.

8 Could be translated as the required objective context.

9 Which is fairly common in honor killings, as a kin strategy to avoid the conviction of the Jināyāt, and pass the case to a juvenile court.

10 This was the case, for example, in the case of Sabiha Dalʿun (C5–5), where the mother had allegedly a preponderant role in commanding her eldest son to finish off his brother‑in‑law.

11 Warwick Tie, “The Psychic Life of Governmentality,” Culture, Theory & Critique 45(2) (2004): 161–76.

12 Idlib Jināyāt 319/1999.

13 The second name, that of the main defendant, seems to have been added later, as an outcome of interviewing. Full names have been omitted, and punctuation added for convenience.

14 The case had originally 8 defendants.

15 Case‑file from the Idlib Jināyāt in 2001–02.

16 Idlib Jināyāt ruling 95/1999, revised ruling on 12/20/2000, Naqd ruling on 1/22/2001.

17 Pierre Clastres, “Archéologie de la violence. La guerre dans les sociétés primitives,” Libre, 1 (1977).

18 Nicolas Journet, “Aux origines des guerres, ” Sciences Humaines, 47 (2005), 8–12 ; J. Haas, ed., The Anthropology of War, Cambridge University Press, 1990.

19 Hence had voluntarily dissociated himself from his original kin‑locality, what eventually became the murder scene.

20 On the importance or irrelevance of auto‑biographical elements for the case‑file and the verdict, see Chapter 4.

21 Later statements in depositions and court hearings confirmed that alcoholic beverages, whisky and araq, were offered at around midnight, probably an hour before all guests had left.

22 Apparently the notion of “attenuating circumstances” had its origins in the French penal law of 1832 regarding “les circonstances atténuantes” that could be granted to a criminal, see Stéphane Legrand, Les normes chez XE "Index:Foucault, Michel" Foucault, Paris: Presses Universitaires de France, 2007, 252; and, Chapter 1.

23 See, Chapter 1.

24 Veena Das, “Sexual Violence, Discursive Formations and the State,” Economic and Political Weekly, September 1996, 2411–23.

© Presses de l’Ifpo, 2015

Conditions d’utilisation : http://www.openedition.org/6540

Rechercher dans OpenEdition Search

Vous allez être redirigé vers OpenEdition Search