This new report from the International Centre for Counter-Terrorism explores the suggested link between radicalisation, the foreign fighter phenomenon, terrorism and mental health problems, taking the situation in the Netherlands as a case study. After an initial mapping of the suggested link, including the presentation of new numbers, the report presents research exploring the causes and mechanisms of radicalisation in relation to mental health issues in more detail. In particular, the social defeat hypothesis, addressing dopamine disturbance due to social exclusion, is discussed in relation to radicalisation. The paper subsequently examines possible responses and looks at some preliminary thoughts as well as concrete ideas, both more long-term and more short-term focused. Finally, the report offers a few thoughts on the way forward.
New Crisis Group report: Fighting Boko Haram in Chad – Beyond Military Measures.
New Study by the Geneva Academy of IHL and HR: ‘Human Rights Obligations of Armed Non-State Actors: An Exploration of the Practice of the UN Human Rights Council’
Ten years after the establishment of the UN Human Rights Council (HRC), the Geneva Academy of international humanitarian law and human rights published a study that highlights the current challenges related to the HRC’s approach to armed non-state actors (ANSAs) and proposes recommendations to better address this phenomenon.
The great majority of contemporary armed conflicts are fought between states and armed non-state actors (ANSAs) or between ANSAs. Against this background, the HRC has increasingly reported on ANSAs both in country and thematic resolutions. In some sessions, the HRC has adopted resolutions that directly address one or more ANSAs. For instance, resolution S-22/1 of September 2014 specifically covered the organisation known as ‘Islamic State’ and associated groups in Iraq, and in May 2015 resolution S-23/1 considered Boko Haram in ‘affected States’.
The terminology used in these resolutions is inconsistent. It sometimes speaks of violations of human rights law and violations of international humanitarian law and at other times speaks of human rights abuses and violations of humanitarian law. The use of the term ‘abuse’ rather than ‘violation’ reflects the unclear legal regime applicable to ANSAs involved in situations of armed conflict and violence. Indeed, while the law of armed conflict also binds ANSAs, the applicability of human rights law to these actors has been controversial, given the alleged objective of human rights treaties, understood as being a body of norms only meant to regulate the relationship between states and individuals living under their jurisdiction.
The Geneva Academy’s In-Brief No. 7 Human Rights Obligations of Armed Non-State Actors: An Exploration of the Practice of the UN Human Rights Council describes the current legal framework applicable to ANSAs. It explores the practice of the HRC and makes recommendations that may be of interest to States, NGOs, and other stakeholders, including when they negotiate resolutions at the HRC.
The publication demonstrates that the practice of intergovernmental organizations such as the UN strongly suggests that ANSAs must also respect human rights law when they exercise elements of governmental functions or have de facto control over territory and a population.
As a consequence, the In-Brief recommends not using the distinction between the terms ‘abuses’ v. ‘violations’ when assessing or denouncing the behavior of ANSAs with regard to human rights, thereby avoiding giving any impression that all categories of ANSAs, including de facto authorities, might be free of human rights obligations.
It also recommends the HRC to avoid branding ANSAs as ‘terrorist’, regardless of their nature and motivation, as this all-encompassing denomination may create difficulties and dilemmas on a both legal and policy plane.
Finally, it suggests that more research is needed to develop a shared and more comprehensive understanding of the notion of de facto authorities, and identify the content of human rights norms that might be binding on ANSAs.
Guest post by Ido Rosenzweig: ICC’s Ntaganda Decision on the Protection of Own Forces from Rape and Sexual Slavery – Much Ado over Something?
We are grateful to Ido Rosenzweig for this guest post on the ICC’s recent decision in the Ntaganda case dealing with the protection of own forces from rape and sexual slavery. Ido Rosenzweig is a research fellow and a PhD candidate at the Hebrew University of Jerusalem’s Faculty of Law; Director of Research (Terrorism, Belligerency & Cyber) at the Minerva Center for the Rule of Law under Extreme Conditions, University of Haifa; and co-founder and chairman of ALMA – Association for the Promotion of International Humanitarian Law.
On January 4, 2017, ICC Trial Chamber VI issued an interesting and important decision in the case of Ntaganda with regard to the question of whether rape and sexual slavery against the perpetrator’s own forces constitute war crimes under the Rome Statute. This decision might have significant implications on the development of the protection of international criminal law towards the under regulated international framework of the protection of one’s own forces. In this short piece I address some core issues of the decision at hand.
The procedure leading to this decision goes back to the confirmation of charges hearing that took place between February 10 and 14, 2014. During the confirmation hearing, the defense argued that counts 6 and 9 could not be confirmed. Court 6 referred to the crime of “[R]ape of UPC/FPLC child soldiers, a war crime, punishable pursuant to article 8(2)(e)(vi)”. Count 9 referred to the crime of “[S]exual slavery of UPC/FPLC child soldiers, a war crime, punishable pursuant to article 8(2)(e)(vi) (count 9)” could not be confirmed.
The Defense argued that the Prosecution was “trying to expand the application of Article 8(2)(e)(vi) to situations that are analogous, arguing an extensive interpretation of Article 4 of Additional Protocol II to the Geneva Conventions adopted 8 June 1977” and that “the protection under Article 4 applies only if a child soldier is captured by the opposing party… Article 4(3) in no way can be used to interpret Article 8 to expand the scope thereof to victims who might be part of the same group as the perpetrator of the crime”. The Defence also asserted that IHL “is not intended to protect combatants from crimes committed by combatants from the same group. Such crimes come under national law and human rights law.” And therefore, according to the Defence, “the charges found in counts 6 and 9 [could not] be confirmed in accordance with the principle of legality”.
Nevertheless, the Pre-Trial chamber confirmed all charges against Ntaganda, including those challenged by the Defense.
Following the Confirmation Decision, Ntaganda filed an application before Trial Chamber VI challenging the jurisdiction of the Court in respect to count 6 and count 9. At first the Trial Chamber rejected the request and held that it was a matter to be addressed at trial. However, following an appeal by the Defence, the Appeal Chamber ruled that “the question of whether there are restrictions on the categories of persons who may be victims of the war crimes of rape and sexual slavery is an essential legal issue which is jurisdictional in nature”. As a result, the case went back to Trial Chamber VI.
In its challenge of the Pre-Trial Court’s decision, the Defence’s main argument was based on the notions that according to Article 3 common to the Geneva Conventions war crimes may not be committed by members of an armed force against fellow members of the same armed force, and that the alleged victims were members of the armed forces, but were not taking direct part in the hostilities.
The Trial Chamber concluded the following:
Despite the fact that the Defence, Prosecution and the Representative of the Victims all made their submissions with respect to non-international armed conflict, the Trial Chamber chose to analyse the relevant offences, in respect to both non-international and international armed conflicts, on the basis that the Chamber could re-characterise the conflict to international at a later stage. As a result, in addition to looking at article 8(2)(e)(vi), the Chamber also analysed article 8(2)(b)(xxii) .
Article 8(2)(e)(vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions.
Article 8(2)(b)(xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;
The Defence’s claim for violation of the principle of legality was dismissed. The Trial Chamber held that the codification of the Rome Statute provided sufficient positive legal basis to prosecute on its own. No violation of the principle of legality was expected solely for the reason that a specific crime might not “have been subject to prior criminalization pursuant to a treaty or a customary rule of international law”.
New article by Professor Andrew Clapham in the International Law Studies journal on Detention by Armed Groups under International Law. The article tackles the question of whether international law entitles armed groups to detain people, as well as the separate question of what international law obligations bind the armed group when persons are detained. The focus is on the obligations that relate to the right to challenge the basis for any such detention, although some attention is given to issues of fair trial and the question of punishment. The article ends by considering the legal framework governing responsibility for States and those that assist armed groups. State responsibility questions relating to attribution and assistance are considered, as are the separate rules which would determine the criminal responsibility of accomplices who could be prosecuted.