Abdullah Bozkurt
Turkey’s top appellate court certified that jihadist, Salafist group Ahrar al-Sham (Free Men of Syria) is not considered a terrorist organization and overturned the conviction of a militant who fought for the group as well as for Jabhat al-Nusra.
In a ruling that set a precedent in Turkey, in April 2019 the 16th Chamber of the Supreme Court of Appeals found that there has been no court decision in Turkey that classified Ahrar al-Sham as a terrorist entity. The judges of the chamber also pointed out that Ahrar al-Sham has not engaged in any terrorist activity that might merit a designation under Anti-terror Law No. 3713 and justified their reasoning with a letter submitted by the Security General Directorate (Emniyet) on August 17, 2017. In the letter the Emniyet said it does not consider the group a terrorist organization.
The judges discounted intelligence reports which described the group as a jihadist, Salafist organization that entered into a number of coalitions with other armed groups in Syria, including some that were designated as terrorist entities by the UN Security Council, whose decisions are legally binding on Turkey.
The ruling was made in connection with a Turkish militant who was convicted in a lower court on charges of membership in Jabhat al-Nusra, an al-Qaeda group in Syria, and Ahrar al-Sham. Furthermore, the top court ruled for the release of the militant and threw his conviction out.
The investigation into the militant, whose name was redacted in the Supreme Court of Appeals documents, was launched when his father filed a complaint against him with the police, saying that his son went to Syria to fight with al-Nusra and asking for the authorities’ help in returning him safely to Turkey. When the jihadist militant was caught at the border upon his return, the evidence collected against him also indicated that he later enlisted with Ahrar al-Sham. During a court hearing, the father recanted his initial complaint, fearing that his son might be convicted on terrorism charges, and denied his initial statement, which described his son as having joined al-Nusra.
The shifting of alliances for fighters within Ahrar al-Sham, backed by the government of Turkey, is not unusual given the fact that many fighters aligned with other groups move from one jihadist faction to another, often lured by better pay and accommodations. Some factions within Ahrar al-Sham had defected to the Nusra Front in the past. Based on mutual interests, Ahrar from time to time entered into coalitions with other groups including al-Nusra and the Islamic State in Iraq and Syria (ISIS) in order to advance the group’s own interests. At other times, it fought against ISIS and other jihadist groups in what was seen as either a turf battle or policy differences.
The Supreme Court of Appeals’ judgement overturning the conviction of a Turkish jihadist who fought for Ahrar al-Sham and the Nusra Front:
16. Ceza Dairesi_2019_2788
The judges at the Supreme Court of Appeals also brushed aside evidence that was uncovered during the 2013 sarin gas investigation that implicated Ahrar al-Sham. According to an indictment in the border province of Adana, suspects were accused of seeking to acquire chemical materials that could be used to produce sarin gas for Ahrar al-Sham and Nusra.
The suspects, one Syrian and five Turks, were detained in May 2013 in an Adana police operation on suspicion of seeking to obtain materials used in the production of chemical weapons. The Syrian suspect, identified as 42-year-old Hytham Qassap, was trying to buy the materials, according to the indictment. Qassap, who remains at large, is believed to have worked closely with Turkey’s National Intelligence Organization (MIT). The case was hushed up after the government intervened. A lawyer for one of the suspects in the sarin gas case was the former district chairman of the ruling Justice and Development Party (AKP), led by Islamist President Recep Tayyip Erdogan, who has backed jihadist groups including al-Sham.
Ahrar al-Sham, originally set up by al-Qaeda loyalists, aims to establish an Islamic state in Syria based on Sharia law after the ouster of the Bashar al-Assad government. Its top commander, Abu Khaled al-Soury, co-founder of the group, fought for al-Qaeda and was close to al-Qaeda founder Osama bin Laden and his successor, Ayman al-Zawahiri. He was killed in 2014. Yet the group survived and even gained more influence after his assassination. It has maintained control of the Bab al-Hawa border crossing between Turkey and Syria for some time. In February 2018 the group merged with the Nour al-Din al-Zenki Movement to form the Syrian Liberation Front.
Although German and Dutch courts designated the group as a terrorist entity, Ahrar al-Sham is not officially designated as a terrorist group by the European Union, the US or the UN. A discussion has been ongoing at the UN as to whether to classify the group as a terrorist entity. Proponents of the move — Russia, Egypt and the United Arab Emirates (UAE) — have been pushing to list Ahrar al-Sham as such an organization on the UN sanction list.
The profiles of the Turkish judges who unexpectedly overturned the militant’s conviction are quite interesting. The 16th Chamber was created in 2014 with a special bill endorsed by the Erdoğan government to transform the top appeals court in the capital. The government recruited 140 new judges in 2014 and another 100 in 2018 to dominate the appeals court. The 16th Chamber’s focus is terrorism cases and crimes against the state. The judges who were named to the chamber were carefully vetted by the Erdoğan government, and the bench was filled with loyalists who came from two distinct backgrounds.
One group boasted Islamist credentials and shared views similar to the political Islamist ideology of the governing AKP. They are seen as sympathetic to the cause of radical Islamist organizations. The other group that sent judges to this special chamber comprises neo-nationalists (Uluslacı) affiliated with the pro-Iran Aydınlık group, led by an obscure political figure named Doğu Perinçek. The same power-sharing agreement is also in effect in other judicial institutions and branches of the government. They act in concert to whitewash the crimes of radical groups, be they jihadist Islamists or ultra-left marginal terrorists.
