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Introduction
The construction of the nation-state brings conflicting and contradictory elements. Hannah Arendt underlines that if these elements are subject to the State as a coerced apparatus to the functions of the Nation,[1] the conflictual aspects then become concretely worrying when the political borders do not overlap with ethnic ones, creating fractures within the democratic order. Secessions and declarations of independence could mitigate, in the short term, these fractures. In the same way, from these instruments, could be born again a nation-state with a different ethnic minority who will be affected. The punctum dolens, therefore, is not the legal instrument used; it is the State structure that manifests itself in a fragile way towards ethnic issues, especially present in the panorama of North-African and Middle-East countries. For this reason, it becomes necessary to consider a system that is an alternative to the state configuration, in which the powers (judicial, legislative, and executive) live in the social body. From this observation arises the fundamental question: "Can democracy exist without a state?" To answer, it is necessary to reconstruct one of the most important experiments: the "Autonomous Administration of North and East Syria", commonly known as "Rojava", a de facto autonomous region that is building its legal order on the anti-state idea. I will try to analyze the main pillars of "Rojava" such as its Constitution and its legislative and judicial functioning to understand if, despite the absence of a State apparatus (precisely a headless State), a binding legal order can exist.
The "Social Contract
Generally, the nature of the Social Contract, in light of the multiple theories that have emerged over time (Thomas Hobbes, John Locke, and Jean-Jacques Rousseau), could be represented as a pact established between individuals through which they delegate power or functions to a subject, placed in a different position respect to the social body formed. In this analysis, the reconstruction of this concept will change, outlining a headless contractualism, in which the limen between the two subjects will thin, leading to an almost overlap between them. This conception, like Dante's Virgil, is of crucial importance in unveiling the Rojava system.
The history of Rojava, on the wave of the revolutionary phenomenon defined as "Arab Spring", began with the Syrian Civil War of 2012. Indeed, the Syrian popular uprisings aimed at the resignation of President Bashar al-Assad, who repressed demonstrations in blood. This unstable period became of fundamental importance for the Kurdish people, who have always been subjected to discrimination and abused by the Syrian government. After several conflicts, the Kurdish YPG ( Popular Protection Unit) militias removed the Syrian military forces, creating an "unmanaged" space. The three liberated regions, Afrin, Jazira, and Kobanê, proclaimed their autonomy, supported by the creation of parties such as the PYD ( Democratic Union Party). The continuous growth of political organizations allowed the creation of a democratic platform, called Tev-Dem ( Movement for a Democratic Society), to coordinate the various political actions. Between 2014 and 2015 there was a restructuring of the platform, given the conquest of further territories by the Kurdish militias. Thus, the MSD was created (Syrian Democratic Council) in which new parties flowed. The goal was to unify the three previously liberated regions, maintaining, however, an autonomous matrix. With the creation of a united area, a legal requirement arose: the creation of a constitutional text. These are the first steps toward the Social Contract.
Specifically, the "Syrian Democratic Council," acted as a Constituent Assembly. It was composed of 165 delegates[2] representatives of their villages, who were elected from their community. To simplify the drafting process, a coordination body comprised of 31 persons and two co-chairs were appointed. [3] One year later, March 16, 2016 represented a turning point. The assembly decided that Rojava would have posed its roots in a democratic federal system,[4] and finally, on December 28, the Social Contract was approved. [5]
From a structural and organizational view, the Social Contract is constituted by 83 articles, divided into four sections: "General principles" (art. 1-16), "General rights and freedoms" (art. 17-46), "The organization of society" (art. 47-70), and "General provisions" (art. 71-83). Furthermore, the importance of the Preamble which enshrined a "consensus-based system of governance in which all individuals and groups can participate in discussions and the making and implementation of decisions on an equal footing" must be underlined. [6] In this declaration lies the reason why Rojava chose this peculiar justification to rename its constitutional text.
A Constitution, in its Latin meaning, symbolizes a power that follows a descendent flux in a top-down system, which recalls a sort of imposition from an organ placed in a position of supremacy. Rojava, on the other hand, in adopting the enunciated scheme of governance, decided to erode the State configuration as a hierarchical and vertical structure, subsequently placing its center of gravity in contractualism. The latter term, however, does not sufficiently depict the ideological substratum present beneath the autonomous region.
Indeed, contractualism, in the case of Rojava, does not create a position of supremacy for a higher organ. Rather, the supremacy resides within the social body as exemplified in the above-mentioned Preamble: "Under this consensus-based, democratic, federal system, all strands of society — first and foremost women and young persons — shall establish democratic organizations and institutions." [7]
To properly understand the nature and the origin of these principles, it is also essential to discover the philosophical scenario that influenced the draft of the "Social Charter"; a political theory called "Democratic confederalism" created by the controversial figure of Abdullah Öcalan.
Öcalan, a fundamental philosopher for Kurds and a terrorist for his motherland, Turkey, was inspired by the concept of "Libertarian municipalism" of the American anarchist Murray Bookchin, who rejects the centralist and bureaucratic idea of administration. Indeed, Öcalan, proposes a political self-government where all groups of society can express themselves in meetings at the local level, general conferences, and councils.[8] Moreover, he adorns his ideological creature with strong feminist presences, considering women no longer as an "instrument to preserve male power,"[9] but placing them in an active role to perform within the confederal society. This idea is represented by law through art. 12 of the Social Contract, which states a system of co-presidency in all political, social and administrative spheres. "This is a basic principle that will help to ensure equal gender representation and participation in running the democratic federal system". [10]
Moving from a vis-a-vis relationship of equality to a level that embraces various communities, an identical conception among different ethnic groups is also fundamental. Through this idea, Rojava is building a non-state detached from any majority or religious settings and, as a consequence, is averting the spectrum of ethnic clashes, an element of disequilibrium in many North-African and Middle-East countries. A concrete representation of this idea is contained in the first words of the Social Contract, in which, with reference to the American Constitution, the subject "we the people" incorporates every ethnic and religious minority, reuniting them in the joint action of demolishing the state structure. For better understanding the importance of this enunciation, is necessary examine the whole article, as written in the Social Contract.
"We the people of Rojava in Northern Syria: Kurds, Arabs, Assyrians, Turkmens, Armenians, Chechens, Circassians, among them Muslims, Christians, Yazidis and various other creeds and sects, declare that the nationalist State has placed Kurdistan, Mesopotamia and Syria at the heart of the chaos that is afflicting the Middle East and has brought acute crises and suffering upon the people". [11]
The previous arrangement must be analyzed not only in a lofty and ethereal perspective, but also as the historical result of an authoritarian and violent dialectic pursued towards the Kurds, initially from a Turkish front with Mustafa Kemal Ataturk, and then from a Syrian front represented by the Baathist party. In fact, the terrible beauty of the Social Contract resides in the ability of metabolizing adversities and distress suffered by the Kurdish population, and then transforming these into an empathic catharsis, free from any religious and ethnic dogma.
The Protection of Fundamental Rights
Firstly, the Social Contract avoids choosing a religion for Rojava, placing it in a more private sphere and creating a mixed society respectful of all ethnic groups through their fair representation in all the institutions.[12] Secondly, the Social Contract is particularly careful to two social groups. The first being women. Existing throughout the Constitutional Charter, there are provisions that codify their independence, their autonomy, and their participation not only in the political life. As embodied in art. 26, which states: "Women shall have the right to participate equally in all spheres of life — political, social, cultural, economic, administrative, etc. — and to take decisions regarding their affairs." [13] In particular, art. 11, with a unique statement, declares that the "objectification of women is forbidden". [14]
Through these words, the Social Charter not only goes beyond a complimentary conception of women (present in many Arab systems) but preserves them from machist behavior and attacks. Indeed, this provision, in addition to its legal force, has an important educational vein.
The second group is represented by young persons. Rojava truly believes in the next generations, defining them as: "The driving force and vanguard of society and their participation in all areas of life shall be guaranteed". [15] In addition, the Social Contract incites them to "play an active role in all spheres of life." [16] Furthermore, the natural consequence of these statements is art. 34, which enshrines: "Education of all levels shall be free. Primary and intermediate education shall be compulsory".
To create a generation that can contribute to Rojava's development, education cannot be sectarian and elitist. If it happens, this may inspire a part of the social body to become detached from the issues of its community. And without the community as a whole, this endangers the experiment of Rojava. As also underlined by Antonio Gramsci's idea, education is the only tool to build an active and free society. [17]
Another peculiarity of the Social Charter is the challenge it undertakes not only against the State nation considered as a legal structure, but also in its economic form, as exemplified by art. 11: "The Democratic Federation of Northern Syria shall be rooted in the principle of the shared use of land, water, and energy and founded on environmental industry and community economy. Exploitation and monopolization shall be forbidden".[18] In this sentence, there are two central aspects of the confederal ideology: the importance of an ecologist society, and the refusal of an economy based on a capitalistic approach.
Rojava seems to prefer a circular economy, which is more compatible with a self-organized society. Particularly, in a purely Leninist view ( See: Vladimir Lenin, "Imperialism, The Highest Stage of Capitalism", 1917) capitalism is rigorously rejected because is strictly connected with imperialism. And imperialism is one of the objectives to avoid for the Social Contract. This idea is embodied by art 20, which states: "Repression, cultural amalgamation, genocide and imperialism shall be considered as crimes against humanity, and peoples and groups shall have a legitimate right to oppose them".[19] As described previously, Rojava and its population are not different subjects, but they are linked in an organicist relationship, involving that the subject "people" act, for the Social Contract, not only as an organ for Rojava, but also as a continuous parameter of the democratic legality.
The Structure of Government
Before introducing the fundamental characteristics of Rojava's legal system it is paramount to understand its territorial configuration. During recent years, Rojava has continuously redesigned its borders due to the several conflicts that involved between the Kurds and the Islamic State (IS), a terroristic fundamentalist organization. This condition has contributed to a repeated renewal of the confederal system in which, however, decentralization has always maintained its primacy as a crucial principle.
In particular, Rojava has dealt with three essential switches. In 2014, a "Democratic Autonomous Administration" was formed on a cantonal system (Afrin, Cizire, and Kobane cantons). In 2016, it started developing a regional structure renamed "Democratic Federation of Northern Syria", which merged in 2018 into the "Autonomous Administration of North and East Syria".
Two features must be underlined throughout this period. The first is Rojava's capacity to soften its harsh self-government structure proclaimed in 2014 in a more collaborative and organized one between the liberated areas. The second is the constitutive role played by the Democratic Society Movement[20] (in Kurdish known as "Tev-Dem"), a political organization that since 2011 has strengthened the confederal ideology by creating an administrative juncture between the political sphere and the citizens based on local council and assemblies throughout Rojava.
This history is normatively precipitated in the provisions contained in Chapter III of the Social Contract, called "The organization of society". The suggestion that emerges, in a lucid manner, is the implementation of a federalist system carried to extreme consequences, with decentralization that has its last point in the communal one, considered as the pivot of the confederal ideology. This last segment, the smallest one, consisting of dozens of households, is the purest representation of the idea of an autonomous and self-organized society, where all individuals, through the adjustment of their interests, fulfill the good of the "res publica".
The idea of full and free city self-regulation is supported by a system of direct democracy that spreads to the various upper levels. Specifically, as enshrined in arts. 48, 49, 51, and 53 of the Social Charter, the democratic structure of Rojava, is divided into four levels: the Communes, the Neighborhoods, the Districts, and the Regions. For each level, various commissions operate in the field of female protection, politics, justice, civil society, education, health, and defense. [21] In the Commune, a coordination council is set up, consisting of two co-presidents (co-chairs), a man and a woman, and a representative for each commission. Furthermore, every citizen, in the weekly meetings of the coordination council, can participate in the discussions, promoting both criticism and advice.[22]
In the Neighborhood, the composition generally varies from 7 to 30 communes. In the meetings at this level, another coordinating council is elected, structured through the co-chair system and the various representatives by commission.[23] In both levels, some time limits are set for the mandate by the co-chairs, limiting their function to a maximum of two "legislatures", without the possibility of renewing for the third.[24] In these platforms, the legislating activity is centered around the typical problems of well-restricted communities (eg. ownership, distribution of resources, education).
In the third level, constituted by districts, instead, the various councils create a further coordinative structure, the previously specified TEV-DEM, composed of 20-30 persons.[25] It has a purely advisory function, which is expressed both in its trade union action between various social groups and political parties, and in its desire to establish new councils and support the communes.[26] Also, before the administrative change from cantons to regions in Rojava, another coordinative body was present: the "People's Council of West Kurdistan" (in Kurdish MGRK). It was made up of representatives of all district councils and of the organizations which are part of TEV-DEM.[27] Its function was to organize the legal relationship between cantons, but from the declaration of the "Democratic Federation of North of Syria" its role has slowly eclipsed.
On the contrary, the task of regional Councils, organized like those of the previous levels, is to legislate; the Social Contract dedicates various legislative provisions to this body. The duration of the mandate should also be mentioned, which does not exceed four years, and the sufficient participation to reach the quorum, achieved with a majority of 50 + 1 in the presence of all the members. Furthermore, some immunities are also stipulated for the opinions expressed by the members of the Council.[28]
Regarding the composition of the Council, an office is established made of six members, including the two co-presidents, for regulating and directing the various activities.[29] In addition to the four levels described above, there is another one of extreme importance : the "Democratic People's Assembly." This body can declare state of war and change the social contract at the request of a quarter of the assembly, and decides with a two-thirds majority.[30] As set out in the Social Contract, this body "represents all peoples residing in the Democratic Federation of Northern Syria. It is a symbol of integrated and fraternal coexistence and of the free and democratic federation established by the peoples of the region".[31]
Studying Rojava's legislative system, the theoretical risk could be that of considering this organ as a mirror of the parliamentary power. However, this preoccupation can only minimize the role played by the Democratic People's Assembly. Indeed, the legislative power is a prerogative of Councils, Neighborhoods, etc. To not reach this tricky conclusion, it is necessary to focus on Article 57, which states that the Democratic People's Assembly regulates "the democratically self-administered cantons, as well as groups and local organizations, as they are the pillar underpinning the democratic federal system. The aim is to unify all the groups that belong to the Democratic Federation of Northern Syria on the basis of their own free will."[32] This arrangement, perhaps the most important, summarizes the headless structure of Rojava, in which the game of democratic forces flows into the concept of "Horizontalism", a traceable element in the ideology of anarchist communism[33], at the base of the thought of Murray Bookchin and Abdullah Öcalan.
The Democratic People's assembly has the power to legislate, but in a reconciling and non-dominant perspective among the various regions. This means that the last level is simply the synopsis of the previous ones and, as such, cannot have, by its ontology, a higher power than the various Communes, Neighborhoods, etc.
The idea that permeates the Democratic People's Assembly is the result of the ethnic and religious differentiation of Rojava. Its heterogeneity cannot allow such a state structure to be able to conceive an institution or a body which is representative of the entire population. Therefore, fragmentation at the level of the social body must be repeated in the adoption of a system that is capable of containing the expectations and needs of each social group, based in this case not on the concept of authority, but of self-regulation, still a fundamental aspect of the entire idea of Rojava.
The Judicial Power
Just as the legislative activity, even the judiciary is profoundly influenced by a multi-level mechanism. Before analyzing this system, however, it is crucial to investigate the principles underlying its functioning. As stipulated in Article 68 of the Social Contract, "Dialogue, negotiation and agreement shall be the key tools used to resolve such problems."[34] The chapter dedicated to judicial activity does not open with the centrality covered by the judge or his judicial activity. Rather, the pivot of the judicial system is featured by the tools used during a proceeding, since Rojava once again respects its systematic opposition to giving a subject a position of authority.
In this perspective, the judge is not only subject to the law, typical of a democratic system, but is also obliged to use procedures that seem more akin to produce a diplomatic relationship (negotiation, agreement, dialogue) than a judgment. As precipitated by this principle, article 68, paragraph 3 states: "The community shall have the opportunity to assess the matter, present any objections or proposals and participate in the decision-making process." The process is therefore not confined only to the various interested parties, but rather, it is a moment of collective participation and discussion that softens the typical rigidity of the procedure for devolving it into a community sphere, constant of Rojava. And it is precisely in the communality sphere that the most innovative judicial platform is established: The Reconciliation committees.
These organisms are present only at the Commune and Neighborhood level; they consist of five to nine people, with a gender quota of 40 percent.[35] Their function is more similar to the mediating than the judicial one; their purpose is not to condemn the two parties but to reach a consensus between them.[36] The subjects who preside over these bodies may also not be lawyers or legal experts, unlike the superior courts.[37] It must be emphasized how Rojava, to support its system of self-regulation, places more trust in a subject involved in the community activity, rather than in a judge extraneous to the affair, turning the dictates of secular principles upside down. The contrast of the idea of authority is also expressed visually in the courts, in which all the subjects involved sit on equal terms, since there are no physical subdivisions for the defense, the prosecution, or the judges.[38] However, it is important to underline how the diplomatic approach of the Reconciliation Committees is limited to minor crimes. Jurisdiction for crimes such as murder is entitled to courts operating as ordinary Courts of Appeal. Worthy of mention are also the Peace and reconciliation committees, purely constituted by women. This organ was established to discuss cases of patriarchy, violence against women, and forced marriages, thus resuming the role of the woman thought by Abdullah Öcalan, and effective institutionalizing it in the Social Contract.
Turning to the criminal case, Rojava draws up a complete system of guarantees, not only at the time of the cognitive procedure, but also in the executive one. Exemplary is the renewal of prisons, undressed of their retributive nature, and instead coated entirely with an educational purpose. This conception was born from a system generated with a desire to first understand actions and then place judgment. The judicial system produced by Rojava, differs, at least in the two levels of the Commune and of the Neighborhood, from many European and non-European legal schemes.
The total absence of judges, indeed, creates strong assonance with the "Athenian" system, in which citizens over thirty had the faculty of judging their peers. It may seem an aberration, a total reversal of guarantees, but only if it is reconstructed with the legal instruments of a state. Seen instead with the enunciated instruments, the judicial system, perhaps, represents the apogee of the confederal ideological expression. Indeed, the judicial morphology comes along with bureaucratic processes that often translate into a bleak immobility for the citizens, and it is precisely the bureaucratic impasse, residue of the state apparatus, that Rojava tries to remove, building in this way a direct relationship with the community that is not only a social body, but also becomes an organ. And again, the Communal level is the filter by understanding the accessibility of intervention in the process by the citizens.
In fact, the procedural law of Rojava is still in the making, at the dawn of the harsh customary law. This means that since there is no codified, positive, accessible law, the process becomes one of the few educational moments for a society that is self-managed but is not self-contained. The process, therefore, in Rojava changes its look and purpose, mainly occupying a space of popular awareness, essential to create a "vere dictum" in a judicial system without judges. However, the "Athenian" idea that structured the Reconciliation Committees gradually dissolves its influence in the vertex of the judicial structure, represented by the Social Contract Council, comparable to the Constitutional Court of Rojava.
As enshrined by art. 65, it must be composed by judges, legal scholars, and jurists,[39] thus overcoming the system previously created at the communal level. The article does not specify the adequate number of judges operating within the Council, leaving to the ordinary law, which must be approved by the two-thirds of the Democratic People's Assembly, the task of the selection process. Art. 66 enunciates the main functions of the Council, such as the interpretation of the Social Contract, the resolution of disputes between organs and regions, the adjudication of conflict that may occur between laws enacted by regions and the Constitutional Charter of Rojava, and the right to validate the public elections and referendums.[40]
Lastly, a citizen who wants to appeal the Council cannot do so by himself, but always through the judge a quo, who has to evaluate and determine if the case presented by that party is sufficiently serious and essential to resolve the appeal. If the request has these characteristics, the examination must be suspended and brought to the Social Contract Council.[41] Rojava, through this judicial system, demonstrates its aptitude to elaborate a mixed legal system, in which the confederal ideology remains the main core but institutionalized in a legal frame.
The autonomous region, in deciding the technical composition of the Council, does not betray its identity, rather, it empowers it. In a self-regulated apparatus such as Rojava, an organ such as the Social Contract Council, is the only one that can prevent anarchical clashes between regions and institutions. And to efficiently fulfill this task, the Council has to be independent of any influence. Indeed, the Social Contract grasps the importance of this condition and puts the Council outside the provisions regarding both judiciary and executive control, devoting to it an autonomous position. This simple affirmation may seem evident, but in a region like the Middle-East, where the judiciary power has often suffered the executive intervention, Rojava is once again a vivid light that innovates democratic functioning.
Conclusions: What are the main challenges that Rojava has to face?
Before analyzing the obstacles that Rojava has to face in its future, one must comprehend if its nature is purely political or may contain specific legal features. Prima facie, the Social Contract seems to be the crystallization of Ocalan's theory, but depicting it through this definition means enchaining its spirit of "de iure condendo." Undoubtedly, the matrix of the Social Contract is affected by a confederal eco, but its tools belong to a legal sphere.
In particular, the decision taken in 2016 to transform the region from the "Democratic Autonomous Administration" to the "Democratic Federation of North-Syria" is not only a nominal dispute, but underlines Rojava's will to construct a defined territory, North-Syria, an organized apparatus, the Federation. This implies that the aim of the Social Contract, drafted in its definitive version during that lapse of time, was not oriented to a political scope, rather, it embodied a primitive formulation of a legal order which shows its binding nature in two main features.
The first feature, from a formalistic approach, was characterized by the democratic process that Rojava went through to draft the Social Contract. Indeed, representatives of all liberated areas and social groups had the chance to participate within the constitutional process, creating a legitimation that arises from people and empowers the Constituent Assembly. The second one, from a substantial point, is the linkage established between the Social Contract and the Rojava community. Far from existing in an abstract level, the respect of the Constitutional Charter is considered as a criterion for a civil and democratic society. This implies that the Social Contract mainly finds its binding nature in a more "consuetudo" aspect, becoming a social practice within the social body.
