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The organisation(al) requirement under IHL and ICL

November 20, 2015

In the past, Katharine and I have addressed the organisational or organisation requirement that forms part of the (lower) threshold criteria (of intensity and organisation) for the existence of a non-international armed conflict on the blog (see here and here). For the purposes of the International Criminal Court, crimes against humanity also have an organisation requirement, as addressed here. We have now published an article together in the Journal of Conflict and Security Law (forthcoming in Volume 21(1), but already available in advance access) that looks at both these organisation requirements.

Our article follows up on my participation in a very interesting round table/conference, organised by the London School of Economics, on “Law, Justice and the Security Gap”. During this interdisciplinary discussion, I presented my thoughts about the possible impunity gap that could arise, if in situations of insecurity, during which non-State actors use violence, the scope of war crimes and crimes against humanity are not sufficiently adjusted to each other; inter alia, with regards the organisational or organisation requirement that forms part of both these scopes (at least for the purposes of the ICC).

Some of the contributions to this LSE meeting are now being published in a special issue of the aforementioned journal. In their editorial, LSE’s Mary Kaldor, Christine Chinkin and Iavor Rangelov (who also chaired the round table and for the editing of the conference publications were joined by Sharon Weil from Sciences-Po) observe that

The world is in the midst of a profound change in the way that security is conceptualised and practiced. Up until 1989, security was largely viewed either as ‘internal security’ or as ‘national’ or ‘bloc’ security and the main instruments of security were considered to be the police, the intelligence services and the military. This traditional view of security fits uneasily with the far- reaching changes in social and political organisation that characterise the world at the beginning of the 21st century.

What we call the ‘security gap’ refers to the gap between our national and international security capabilities, largely based on conventional military forces, and the reality of the everyday experience of insecurity in different parts of the world. To some extent, public security capabilities are beginning to adapt to the changing nature of insecurity—with new doctrines or new military–civilian capabilities. But it is also the case that the gap is being filled by private agents—warlords, militias, private security companies, NGOs, for example— and, even though some forms of hybrid security provision may improve people’s lives at least temporarily, this new market in security may have dangerous implications.

In other contributions to the special issue, Sharon Weil addresses how national courts, mainly those of Israel and the US, have dealt with targeted killings, whilst Iavor Rangelov assesses whether international criminal justice has brought “Liberal Peace” in the Balkans. Colin Murray looks into the UK’s counter-terrorism jurisprudence.

In our article “Law, Justice and a Potential Security Gap: The ‘Organisation’ Requirement in International Humanitarian Law and International Criminal law”, Katharine and I first set out how the organisation requirement for NIACs has been analysed in the case law of the ad hoc tribunals, and how certain factors and indicators have been identified by the ICTY. To demonstrate that situations of significant violence can exist, without the level of organisation of the armed groups involved rising to the required level for the application of international humanitarian law, we analyse the early stages of what since has become the Syrian conflict. In early 2012, significant violence was used by either side, yet only in July 2012 the ICRC considered the Free Syrian Army sufficiently organised to speak of a NIAC and the applicability of the relevant rules of IHL. In the second part, we look at the “organizational policy” requirement for crimes against humanity, as included in Article 7 of the Rome Statute, Read more…

Congratulations Dr Katharine!

October 23, 2015

I am very proud to announce that Katharine today (I just left the celebraties drinks held afterwards) successfully defended her PhD! She defended her thesis in the beautiful “Senate Hall” of Utrecht University and was awarded a cum laude (which is very rarely given in the Netherlands) doctor degree for her thesis on “The Accountability of Armed Groups under Human Rights Law”. One of her supervisors, prof Terry Gill, (the other two (!) were profs Cees Flinterman and Harmen van der Wilt), mentioned in his “laudatio” (congratulating speech) that one of the committee members (the committee was made up of profs Andrew Clapham, Jann Kleffner, Elies van Sliedregt, Cedric Ryngaert and Fred Soons) had referred to her manuscript as “exquisite”. Having read an advanced copy of her manuscript, I can wholeheartedly agree with this observation! We can all look forward to the publication that will surely be of great assistance to those working in this field.

Her defence explains (partially) explains the lack of activity on the blog (I do also have a good excuse – albeit not as good as Katharine’s). Utrecht University had been smart enough to offer her an assistant professorship, so hopefully she (and I will also make an effort) will be able to devote more time to the blog in the near future.

For now: Congratulations Dr Katharine!

The 2015 edition of the Bruges Colloquium on IHL will deal with “Urban Warfare” and take place on 15-16 October 2015

October 4, 2015

The 16th edition of the Bruges Colloquium on International Humanitarian Law will take place on 15-16 October 2015 and will deal with “Urban Warfare”. The ICRC and the College of Europe have, as they do every year, put together a very interesting programme. An excellent reason to visit Bruges, where you combine attending a high-level discussion on IHL with enjoying some Belgian delights (such as chocolates, moules et frites and beer)!

The proceedings of previous years can be accessed (for free) online. Last year dealt with the detention in armed conflict. Other previous topics relevant for the readers of this blog include: Scope of application of IHL, Relevance of IHL to Non-State Actors, Improving compliance with IHL, and Armed Conflicts and Parties to Armed Conflicts under IHL: Confronting Legal Categories to Contemporary Realities.


The Colloquium’s sessions will address:

1) The identification of military targets in cities

2) Protecting civilians living in cities against the effect of hostilities

3) The prohibition of indiscriminate and disproportionate attacks

4) Two panel discussions: one on the legality of siege warfare and one on how to reduce human cost of the use of explosive weapons in populated areas.


Speakers include academics such as Marco Sassoli, Francoise Hampson, Sean Watts, Agnieszka Jachec-Neale and Nobuo Hayashi, as well as practitioners of the ICRC, NATO, NGOs and national armed forces (such as Lauren Gisel, Stephen Hill, Clive Baldwin, and Guy Keinan, respectively).


Practical information is available here. The (provisional) programme is as follows: Read more…

Education and Non State Actors: Towards a Comprehensive Agenda

September 30, 2015

Pages from EAA1949-20150922A thought-provoking report was published last week by Protect Education in Insecurity and Conflict (PEIC) on ‘Education and Armed Non State Actors: Towards a Comprehensive Agenda’. The report, written by Jonathan Somer at Persona Grata Consulting (formerly from Geneva Call), addresses education and non State actors. It was written for a Workshop on Education and Armed Non-State Actors organized by PEIC and Geneva Call in June 2015.

Somewhat uniquely, the report deals not only with the manner in which armed groups may attack schools or use them for military purposes, it also deals with the provision of educational services by armed groups. This latter issue has up until now been given relatively little attention by researchers and poses particularly difficult questions for policy makers.

Structure of the report

The first section of the report surveys ‘what ANSAs do’ in terms of practice. Its focus is on three aspects (i) provision of education (ii) attacks on education and (iii) the military use of schools and universities.

The section on the provision of education is by far the longest, and contains the most interesting and groundbreaking research. Acknowledging that the data on the role of ANSAs in the provision of education is sketchy, the report highlights key instances in which ANSAs have provided primary, secondary or higher education around the world. It also highlights instances in which ANSA in control of territory have cooperated with the existing government to provide educational services in the territory under their control.

The section ends by providing some comments on the quality of education provided by ANSAs and the challenges they encounter in its provision. It also cites instances in which aid and donor agencies have been prepared to work with ANSAs in their efforts to provide education or protect child rights. Importantly, the report also considers the impact of ANSA education on a country’s transition out of armed conflict to a state of peace.

The report then continues by shortly considering the negative aspects of ‘what ANSAs do’. In particular, it focuses on attacks on education and military use of schools and universities.  It highlights that research shows that ANSAs are generally more prone to make attacks on educational establishments than states. Conversely, it shows that States have been more often implicated in the use of schools for military purposes than ANSAs.

The second section of the report surveys ‘what ANSAs say they will do’ in terms of doctrine. In doing so, it provides examples of pledges, laws, statements, commitments by armed groups on (i) the provision and facilitation of education by armed groups (ii) the protection of schools and (iii) the military use of schools and universities.

The third section of the report looks at the normative framework of IHL and IHRL considering ‘what ANSA are obliged to do’. This section points out that the legal framework protecting schools from attack is relatively straightforward and stems from international humanitarian law rules and principles. It shows that the legal framework prohibiting schools from military use is less straightforward, as there is no absolute international law prohibition against using schools and universities for military purposes.  The report points out that the legal framework pertaining to this issue would be more restrictive if it is accepted that ANSAs are bound by the IHRL obligations to protect and fulfil the right to education. Clarity on this issue would also assist in clarifying the scope of ANSAs duties to ensure education.

The final substantive section of the report looks at the international norms and policy provisions relative to the engagement of ANSA in general, and in the area of education in particular. It also look conducts a preliminary survey of international response in practice. In doing so, the author of the report utilises anonymous interviews with people working in humanitarian agencies to illustrate some of the difficulties agencies face on these issues.

Discussion framework

The report ends by identifying key areas for discussion that are distilled into three major questions followed by further sub-questions:

  1. To what extent should ANSAs be engaged with and supported in their efforts to ensure and regulate education?
  2. How can the response be improved?
  3. How should international actors approach education an ANSA issues in peace and transition processes?

The report is too dense and too richly written for me to summarise further in a blog post, but it is a rare piece of writing about the provision of public services by armed groups in territory under their control. This is a topic that is too rarely acknowledged in writing relating to armed groups but which certainly deserves more attention by  lawyers and policy makers.

In paying attention to these issues, the report is extremely thorough at looking at the issue from every angle and from the perspective of every actor. Ultimately, it exposes the tensions that humanitarian agencies face when trying to secure the needs of those on the ground without reinforcing the government capacities of the armed group or reinforcing the breakdown of the State.

One of the stated purposes of the report was to ‘initiate a dialogue among policy makers, practitioners and researchers … in the pursuit of universal access to quality education for all – even for those who find themselves under the control or influence of ANSAs’. There is very little doubt in my mind that this report must have prompted interesting discussion at the workshop in June on this issue. Hopefully the report of the workshop will be coming out soon, and when it does, we will post it here.

Conviction of FDLR leaders by German Court

September 28, 2015
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Logo of the FDLR

Today a German court convicted two Rwandan rebel leaders for crimes committed in the DRC. The two rebel leaders, Ignace Murwanashyaka and Straton Musoni, were the president and vice president of the Democratic Forces for the Liberation of Rwanda (Forces Démocratiques pour la Libération du Rwanda, FDLR).

Murwanashyaka was found guilty of war crimes in relation to five FDLR attacks in eastern Congo and of leading a terrorist organization. Musoni was found guilty of leading a terrorist organization but acquitted of war crimes and crimes against humanity. The two men were sentenced to 13 and 8 years in prison, respectively. After the verdict, Musoni was released immediately due to the time that he has already spent in prison.

The trial against Murwanashyaka and Musoni which began four years ago is the first that has been taken under the German 2002 Code of Crimes Against International Law (CCAIL). The CCAIL incorporates the Rome Statute of the International Criminal Court (ICC) into German law. It gives German courts the universal jurisdiction to investigate and prosecute war crimes, crimes against humanity, and genocide, irrespective of where they are committed (for more on this legislation, see here).

Today’s verdict constitutes the first successful prosecution of members of the FDLR. In 2011, the International Criminal Court declined to confirm the charges against Callixte Mbarushimana, the Exective Secretary of the FDLR.

The FDLR is a Rwandan Hutu rebel group based in territory in eastern Congo bordering with Rwanda. It was formed in 1994 after ethnic Hutus, some of whom were perpetrators of the Rwandan genocide, fled to neighbouring DRC. The group’s stated aim is to overthrow the Tutsi dominated government in Kigali.

The FDLR’s top leadership was known to have been situated in Germany and France but maintained their control and influence in DR Congo. In 2009, a UN report alleged that the group relied upon a vast international network of supporters in at least 25 countries. It found that Murwanashyaka was helping negotiate armed shipments to the group as well as organizing money transfers to commanders on the ground. According to the report he was also handling money which had been raised by the group through the illicit sale of natural resources.

According to the report, phones logs showed that Murwanashyaka had made more than 240 calls to satellite phones used by FDLR field commanders, including numerous calls to the telephone of General Sylvestre Muducumura, the rebel movement’s army chief in eastern Congo. According to the report, deserters had reported that Muducumura did not carry out any major military operation without first consulting Murwanashyaka.

In line with these findings, both Murwanashyaka an Musoni have been convicted of having committed crimes in the DRC from Germany where both have lived for the last twenty years. The Prosecution brought evidence that Murwanashyaka communicated with the first general of the FDLR in the ground in the DRC by satellite phone and mobile phone. His deputy, Straton Musoni, was alleged to have issued orders to the FDLR militia from Germany via satellite telephone, SMS and emails.

When the trial started in 2011, the pair were accused of committing 26 counts of crimes against humanity and 39 of war crimes. During the course of the trial, many of the charges were dropped including some of those relating to the use of child soldiers and rape. It has been suggested that these charges may be the result of a questionable level of investigation on the part of the prosecution.

Indeed, criticisms of the trial have been numerous. In particular, the defence lawyers have repeatedly criticised the trial as being politically motivated and instigated by the Kigali government. There have been also numerous criticisms of the quality of the translating during the trial with Murwanashyaka reportedly quarreling frequently with the court interpreters about the exact translation of the texts. The judge apparently said that the problems encountered during the trial and the time it took had been “unacceptable”.

The case highlights the logistical difficulties of conducting criminal prosecutions many thousands of miles from where the crimes were committed. Indeed, during the trial, it was highlighted that German authorities faced considerable difficulties in securing the safety of those who testified from the DRC, after their testimony. The case also highlights the dilemma of how to make prosecutions in third countries meaningful for those on the ground in the countries where the crimes were committed.

That being said the conviction of the two men can also be seen as sending an important message to war criminals seeking a safe haven in third countries. It also constitutes a warning to persons in diaspora communities that their support for, and involvement with, rebel groups abroad may constitute criminal acts. Perhaps most importantly of all, it sends an important message to the leadership of the FDLR which continues to remain active in the areas of the DRC surrounding Lake Kivu that their crimes have not been forgotten.

Arrest Warrant against Ahmad Al Mahdi Al Faqi made public

September 28, 2015

As a postscript to my previous post on the arrest of Ahmad Al Mahdi Al Faqi at the weekend, his arrest warrant was made public today and can be found here with redactions. Mr Al Faqi’s first appearance before the Court is scheduled for 11am on Wednesday 30th September 2015.

Ahmad Al Mahdi Al Faqi surrendered to ICC for war crimes against mausoleums and mosques in Timbuktu, Mali

September 26, 2015

Today, Ahmad Al Mahdi Al Faqi (Abu Tourab), was surrendered to the International Criminal Court (ICC) by the authorities of Niger and arrived at the Court’s Detention Centre in the Netherlands. Mr Al Faqi is accused of war crimes committed against religious and historical monuments in Timbuktu, Mali, between about 30 June 2012 and 10 July 2012, when the city was under the control of the Al Qaeda in the Islamic Maghreb (“AQIM”) and Ansar Eddine, a mainly Tuareg movement associated with AQIM.

Specifically, Mr Al Faqi is accused by the  Prosecutor of having committed, individually and jointly with others, facilitated or otherwise contributed to intentional direct attacks against nine mausoleums and one mosque. According to the Prosecutor, Mr Al Faqi, was actively involved in the occupation of Timbuktu. He was a member of Ansar Eddine, working at the leadership level coordinating operations between the two groups in control of the area. The Prosecutor alleges that, until September 2012, Mr Al Faqi was at the head of the “Hesbah” (“Manners’ Brigade”) which was operational from May 2012. He is also alleged to have been associated with the work of the Islamic Court of Timbuktu and participated in executing its decisions.

The case The Prosecutor v. Ahmad Al Faqi Al Mahdi is the first in the context of the ICC Prosecutor’s investigation regarding the situation in Mali. It is also the first case to be brought before the ICC concerning the destruction of buildings dedicated to religion and historical monuments.

The situation in Mali was referred to the Court by the government of Mali on 13 July 2012. On 16 January 2013, the Prosecutor opened an investigation into alleged crimes committed on the territory of Mali since January 2012.

See for previous posts on this blog on the Mali situation:-

Why Mali should immediately sign the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict. NB: Mali acceded to the Second Protocol on 15 November 2012 utilising the expedited procedure available in times of armed conflict which ensured that it came into force immediately.

The French Intervention in Mali and Additional Protocol II. 


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