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Call for papers: Islamist rebel governance workshop

July 1, 2020

Interesting call for papers on the nature, institutions and dynamics specific to Islamist rebel governance. See below details:-

Regulating ceasefires in the grey zone between war and peace

June 25, 2020
Hosam Edeen, Daraya Local Council, Syria

Dr Marika Sosnowski is an Australian qualified lawyer and a research associate with the German Institute for Global and Area Studies. Her primary research interests are in the fields of critical security studies, complex political order, local/rebel governance and legal systems. Marika’s research takes a more critical and empirical approach to security questions by examining how international and local arenas interface and influence relationships and power dynamics. Her primary geographical area of specialisation has been the Middle East, particularly Syria

Recent scholarship in the social sciences – primarily in the fields of anthropology, political economy, security and development – has found that ceasefires have effects on the ground beyond only halting violence. These include for other more political areas such as governance institutions, economic resources and citizenship and property rights. While parties to an armed conflict already exist in a legal relationship via international humanitarian law (IHL), this legal framework is mostly concerned with regulating the use of violence and the protection of civilians. It therefore does not provide adequate regulation for these more political consequences of ceasefires.

This post compliments a recent scholarly article I wrote on this topic for the Leiden Journal of International Law. It outlines the traditional understanding of ceasefires and canvasses three legal frameworks that could potentially help enhance the compliance of signatories through additional regulation – as contractual documents; as special agreements under Common Article 3; or under an expanded version of lex pacificatoria. While the former two have merits, I argue that ultimately lex pacificatoria provides a legal regime that takes into account that the written text of ceasefire agreements and the construction of the law are mutually shaping. Because of this, it is able to offer more flexible “programmatic standards”, rather than hard, codified law, that are well suited to dealing with the grey zone between war and peace that ceasefires occupy.

The traditional view of ceasefires

Most definitions of ceasefires conceptualise them as agreements designed to stop or reduce the violence of armed conflict. Definitions of ‘ceasefires’ include those by the Uppsala Conflict Data Program which defines a “ceasefire agreement” as one of six possible ways that a conflict can be terminated; “agreements, facilitated by a third party, that define the rules and modalities for conflict parties to stop fighting” (at 1); or, as “an end to or break in the fighting, whether or not it represents the final end of the war” (Page Fortna, at 45). The founding father of the laws of armed conflict Hugo Grotius assumed a ceasefire to be a temporary state of affairs that did not alter the legal state of war. He wrote that if hostilities resumed after a ceasefire is declared there is no need for a new declaration of war to be made since the legal state of war is “not dead but sleeping”.  The continuing authority of this definition is echoed by IHL which stipulates that a “truce” does not entail the suspension of the application of this framework or put an end to the legal state of war and its associated legal consequences. IHL contains relatively few provisions relating specifically to when ceasefire agreements should be negotiated, what they need to contain or how their terms need to be applied. Beyond this, IHL gives no more specific guidance on what acts are permitted or forbidden during a ceasefire.

What all these definitions have in common is their overwhelming focus on ceasefires as a way to stop or reduce the violence of armed conflict. However, rather than a ceasefire being seen as something that stops “whatever is done by force against the enemy” (Grotius, at 451), new scholarship on the effects ceasefires can have on areas beyond violence, such as governance institutions, economic resources and networks and citizenship and property rights suggests that a legal framework beyond IHL may be needed to generate certain standards and operational guidelines that provide flexible but enforceable expectations around what ceasefire agreements contain (i.e. their text) as well as their diverse ramifications on the ground. To understand the added value of this framework, it is first useful to set out the various ways in which ceasefires are traditionally understood from a legal perspective.

As contractual documents

While ceasefire agreements are not a contract in the business sense, ceasefire agreements certainly have most if not all of the elements of a common-sense way of understanding contractual documents. Ceasefire agreements are increasingly becoming a quid pro quo bargaining arrangement whereby parties are expected to give something in exchange for their supposedly humanitarian gesture of ceasing fire. These include the fact that ceasefires are generally in writing, include a number of carefully worded terms and clauses, are frequently negotiated with the help of an international third-party and are signed by the parties to the agreement. When viewed objectively, a reasonable assumption from a lay observer is therefore that ceasefires constitute a type of contract (or potentially even a treaty in inter-state conflicts).

This business-style dynamic of reciprocity, which implies that the humanitarian gesture of ceasing fire will only be granted in return for something else, such as troop withdrawal or humanitarian access, is reinforced by ceasefire negotiations in contemporary civil wars such as Syria, Yemen and Iraq. For example, in Yemen, Saudi Arabia agreed to a ceasefire in Hodeidah in exchange for Houthi forces redeploying from the city as well as from the ports of Salif and Ras Isa and in Homs in Syria, the UN mediated a ceasefire between the Syrian regime and local leaders in the Old City where the regime agreed to a ceasefire so that women, children and the elderly could be evacuated for medical reasons and rebel fighters would have the ability to “resolve their situation” with the government.

A negative consequence of the “commercialisation” of ceasefire negotiations is that the bargaining process primarily aims to halt violence or address dynamics directly relevant to the military arena, rather than a range of other salient political dynamics that conflict parties may be fighting over or interested in securing. Also, even if ceasefire agreements in intra-state conflicts are considered a type of contractual document that in theory would fall under domestic law, it remains unrealistic to expect enforceability to come from the state itself or through the physical intervention of a third-party. Practically speaking, this makes the benefits of using this as an additional legal lens to augment the efficacy of IHL relatively limited. While signing a ceasefire agreement that is also considered to be a legal contract may help in legitimising certain conflict actors, it arguably does little to assist with compliance or enforceability, particularly regarding contested areas beyond violence.

Special agreements under Common article 3

Sometimes ceasefires are understood as special agreements under IHL. Special agreements are a tool used to enhance compliance by state and non-state actors with particular elements of international humanitarian law or to reinforce pledges to abide by additional legal paradigms, such as human rights law. For example, to guarantee the protection of persons and their property and not to conduct forced movements of the civilian population, commit acts of violence against the civilian population or destroy property; or to abstain from torture and intimidation. In theory, the inclusion of these terms in a special agreement can be a reminder to parties of their pre-existing commitments under IHL and therefore helps in encouraging compliance.  

While minimum standards of IHL will continue to apply regardless, special agreements also enable parties to a conflict to bring into force additional legal obligations. In practice, however, there are no legal incentives for a party to include a special agreement in a ceasefire that covers more than the requisite IHL obligations. While it would be possible to consider all ceasefire agreements as incorporating the special agreement tool from the outset, states have been hesitant to do this out of fear a special agreement may grant a non-state group additional legitimacy (pages 572-573). Another obstacle is the unwillingness of parties to commit themselves to a broader range of legal obligations than required. This is understandable but means that using special agreements as a way of expanding or enhancing the regulation of ceasefire agreements is limited.

Under an expanded version of lex pacificatoria

Over the past two decades, Christine Bell has pioneered research into a new legal field she calls lex pacificatoria primarily in relation to better regulating the messy politico-legal space peace agreements occupy. The logic of lex pacificatoria is that the purpose of international law as it relates to peace settlements is not to regulate negotiation outcomes, but rather to set out broad normative parameters or “programmatic standards” that support the idea that negotiated outcomes should be both capable of implementation and accord with some sense of justice. These flexible guidelines are based on the assumption that the text of peace agreements and the practice of international law are mutually shaping and constitutive. Further, Bell argues that peace agreements need to be understood in light of a combination of domestic and international components, and in recognition of the fact that the enforcement of a peace agreement depends on political processes (at 305). Therefore lex pacificatoria is never a wholly formed set of rules of laws. Rather, it attempts to achieve a level of regulation and compliance while simultaneously leaving room for the contestation and negotiation over what concepts such as “accountability”, “justice”, and even “peace” mean and may require in different contexts. This stands in contrast to jus post bellum which is more firmly based on codified laws (i.e. IHL, criminal law and international human rights law) and uses them as a way to regulate the post-conflict domain.

I argue that expanding lex pacificatoria to cover partial ceasefires (i.e. agreements signed before a definitive peace agreement) is appealing because instead of offering strict binary divisions between war and peace or legal and illegal, the more amorphous environment created by what are commonly referred to as partial, lite or preliminary ceasefires is potentially better “governed” by a lex that is flexible and lends itself to negotiation and compromise rather than the application of fully formed legal norms. By considering both the terms ceasefire agreements contain and their diverse political and military ramifications on the ground, lex pacificatoria enables us to construct some guidelines that can be used to quasi-regulate the grey zone between war and peace. Instead of doing this through a categorisation of ceasefire terms as being either legally binding or non-binding, Cindy Wittke has noted that a better approach is to locate ceasefires on a legal continuum from low to high legalisation. Likewise, as the growing body of work on ceasefires being undertaken in the social sciences shows, ceasefire agreements have a range of consequences on the ground regardless of their enforceability, supposed success or legality.

For example, a series of ceasefires signed between Russia, Ukraine and separatist groups operating in the eastern region of Ukraine known as the Minsk Agreements have not brought peace but continue to shape political processes (at 285). These include in relation to governance, rights and security. In 2017, Ukraine submitted a suit against Russia to the International Court of Justice in a (creative) attempt to hold Russia accountable for breaching terms of the Minsk Agreements. In their arguments, both parties addressed debates over the legal status of ceasefire agreements (Verbatim Record, CR 2017/3, pages 17–18 para. 15-16). Their concern about the legal nature of ceasefires underscores the reality that ceasefires sit at a juncture in armed conflict where the division between the fields of politics and law is increasingly blurred. The submissions also point to the fact that the conflict parties were cautious about how ceasefire agreements can be used to contest legitimacy and authority and can potentially create forms of responsibility for signatories in both military and political domains.

Regulating ceasefires

In suggesting that additional legal tools are needed to manage and regulate ceasefire agreements – such as contractual documents, as special agreements or ideally as part of an emerging lex pacificatoria – my hope is to add to the social construction of the legality of ceasefire agreements in order to make them better able to form part of the already common set of rules, principles and practices that govern the international legal system. This is increasingly important in contemporary civil war environments because compliance depends more and more on legal status and (real or perceived) censure than physical enforcement mechanisms.

Scratching below the surface: what can local peace agreements tell us about armed groups and conflict fragmentation?

June 21, 2020

Dr Juline Beaujouan, Tim Epple, Robert Wilson and Laura Wise are Research Associates at the Political Settlements Research Programme at the University of Edinburgh. They are part of the research team behind the PA-X Local Peace Agreement database, led by Professor Christine Bell, and are collectively interested in global comparisons of peace processes, as well as individually focused on conflicts past and present in the Middle East and North Africa (MENA), sub-Saharan Africa and Europe. Juline holds a PhD in Politics from Durham University, Tim holds an MSc in African Studies from the University of Oxford, Robert holds an MSc in International Relations from the University of Glasgow, and Laura holds an MA in Comparative Ethnic Conflict from Queen’s University Belfast.

Taiz, Yemen – photo by Rod Waddington

The call for an immediate global ceasefire launched by UN Secretary-General António Guterres on March 23, 2020, as a response to the Covid-19 pandemic, has been backed by some 70 states and answered by conflict parties in at least 9 countries around the world. In some of the most protracted contemporary conflicts, such as in Syria, Libya, and Yemen, the global call was briefly touted as a possible opportunity to re-energise stalled or struggling national peace talks. However, this optimism was short lived following sustained clashes in Idlib (Syria), escalated confrontations in Tripoli (Libya), and continued advances by Houthi rebels in Yemen.

Whilst the Covid-19 pandemic is the latest threat to already-struggling Track 1, national-level peace processes, locally-led attempts to mitigate or end violent conflict in contexts across MENA and sub-Saharan Africa remain ongoing, albeit under extremely difficult circumstances. The prevalence of local peace processes in the absence of sustained progress of national mediation efforts has led to more focussed attention on this phenomenon in recent years, and in this post we draw on a new collection of local peace agreements to reflect on the state of contemporary conflict management and peacemaking in an increasingly fragmented world.

The fragmentation of conflict management and peacemaking

A closer look at conflict and socio-political dynamics in MENA and sub-Saharan Africa reveals the multi-level fragmentation of conflict-affected countries: the geographical and identity fragmentation where the state and society are divided in times of conflict and peace. The discord of those countries can be understood as where the state itself is not only fragmented but it is also only one fragment within a complex constellation of groups positioned by geography and identity – groups who bargain for peace at the national and the local level. As such, both theatres – the national and the local – are sites of conflict and peace where groups’ motivations, strategies and affiliations shift over time. The vacuum of power and legitimacy left by this fragmentation results in the multiplication of warring parties – often in the form of armed groups – which impose their rule over parts of the national territory.

These dynamics of localisation and fragmentation of conflicts echo a development that can be observed not only in Syria, Yemen and Libya in the MENA region, but also in the Central African Republic (CAR), Somalia and South Sudan in sub-Saharan Africa. We suggest that these conflicts could be better described as sets of complex conflict systems that are nested within the local, regional, national, and international levels. These dynamics are also mirrored in processes of conflict management and peacemaking, which sometimes respond to this complexity by brokering and signing agreements between locally-based and other actors within a part of the wider conflict-affected area. Researchers, peacebuilders and policymakers are increasingly interested as to whether locally brokered commitments could provide a necessary complement, if not an alternative approach, when national peace initiatives have stalled, to foster an all-encompassing and more inclusive peace. 

Introducing the PA-X Local Peace Agreements Database

At the Political Settlements Research Programme (PSRP) we are investigating the fragmentation and localisation of conflict management and peacemaking through a collection of almost 300 local peace agreements. PA-X Local is the first open-access database of publicly available written local peace agreements from across a global set of conflict-affected contexts. The agreements, which span from 1990 to 2019, were signed between locally-based and other actors to address local conflict-generating grievances only within a part of the wider conflict-affected area, rather than the entire conflict zone. PA-X Local offers a glimpse into the processes and outcomes of local peacemaking, including information on how it relates to any national peace process.

This collection of local peace agreements raises the potential for analysing patterns in local peacemaking over time and across varying contexts, as well as exploring any links between local, regional and national-level peace processes. It also helps us to better understand the practices of highly localised actors, their influence on wider conflict dynamics, and their interactions with actors more embedded in the national-level process whose wider conflict agendas ultimately shape conditions at the local level. PA-X Local exposes the diversity of local peace agreements, that are highly dependent on the local settings where the conflict takes place and is managed between local parties. This includes the emphasis on categories of substantive issues addressed by local agreements: use of rituals and prayer; acknowledgement of grievances; references to cattle rustling or livestock theft; and, removal of social cover.

Here are three initial observations on dynamics of conflict and peacemaking that have emerged from our review of local peace agreements.

Observation 1: The diversity of actors in local peacemaking

The diversity of actors involved in the signing of local peace agreements echoes the plethora of contextual settings in conflict-affected countries. It also highlights how those settings shape the nature and scope of local commitments to cease hostilities. For instance, the negotiation and signature of local peace agreements often give a prime role to representatives – such as religious leaders, community elders or civic society groups – whose credentials and legitimacy are grounded within the local community. The Resolutions of the Marsabit-Moyale District Peace Committees’ Civic Dialogue in Kenya in 2006 is a good example of the diverse inclusion of local actors within a peace process that aimed to resolve issues around cattle rustling and communal insecurity in the district. This diversity also raises the question as to whether local peace processes may offer greater inclusion of women, or if women still face different and contextual barriers to participation than they do to access national negotiations.

Within this diversity of local peacemakers, there can also be a duality of role which is highly contextual. In Yemen, the title of Sheikh is often synonymous with leadership and tends to be listed alongside other prominent societal or community figureheads in agreements. Their role tends to convey a sense of civic responsibility, calling for agreements and representing the interests of the communities, tribes or specific armed actors involved, and functioning either as mediators, facilitators or witnesses. As local actors however, their true alignment continues to appear amorphous. The title can convey a sense of religious or tribal identity or community representation, however often they cannot be disentangled from the complex web of armed actors.

Nonetheless, this diverse participation of hyper-local actors does not necessarily suggest an absence of the state. In the case of intercommunal conflicts, the latter may play a key role in the mediation phase that brings all potential signing parties around the same table. Conversely, the signing of countless local agreements between armed groups in Syria has come to enshrine the quasi-absence of the state in local conflict management across different parts of the country. This diversity of actors suggests that not only does localisation of peacemaking raise challenges for peace process designs that anticipates the state to be one of the parties, but that those wishing to support local peace processes may need to look beyond ‘the usual suspects’ for finding mediators and brokers with the requisite local legitimacy to engage with the process.

Observation 2: The role of religious rules, rituals, and prayer in local peacemaking

In both the MENA and sub-Saharan regions, the religious credentials of some armed groups are mirrored in the texts of local peace agreements. These religious references can include the inclusion of religious rules, including the Islamic Shariah law, to settle specific cases or provide implementation mechanisms for elements of the agreement, as in an agreement between the al-Nusra Front and the Free Syrian Army, in 2014 in Idlib. Other religious references in local peace agreements include sealing the agreement through shared Christian worship, such as the 1999 Waat Lou Nuer Covenant in South Sudan and swearing an oath on the Koran by members of a local community as part of the 2019 Proces verbal de gestion de conflit in CAR.

Religious actors, rituals, and prayers do feature in national and internationalised peace processes, such as the Papal benediction in 1998 as part of the Ecuador-Peru border dispute peace process. However, the inclusion of religious rules, rituals and prayer appears to be more prevalent and central in local peace agreements than national ones, and in some instances the inclusion of religious references may account for the importance of religious identity as an additional layer within nested conflicts.  

Observation 3: The variety of purposes and functions of local agreements

Local agreements serve a variety of purposes. While some local peace agreements may be regarded as crucial steps for the broader peace process, others pursue more limited and immediate goals, such as allowing humanitarian access or solving daily disputes over natural resources. Interestingly, some agreements challenge our notion of agreements functioning as peaceful tools for conflict management. In Syria and Yemen for instance, a number of local peace agreements were used as tactical tools to manage the conduct of warfare in order to improve outcomes for certain groups within the broader peace settlement, such as Hayat Tahrir al-Sham response to an initiative to end the conflict with Harar al-Shamin July 2017, or the 2014 agreement between the Tihami Movement and Ansar Allah. In other instances, agreements that provided for a cessation of hostilities in one locale, displaced warfare to another area, or reiterated commitments of signing parties to their struggle against a third actor. In fact, the majority of local agreements signed in Syria are assertions of the commitment of the non-state armed groups to sustain their struggle against central rule.

Yet in other contexts, local peace agreements may have positive knock-on effects. Local agreements can help contain violence in some instances, inspire peacemaking in neighbouring areas by demonstrating their effectiveness, or even improve conditions for brokering peace at the national level. For instance, the ‘people-to-people’ processes facilitated by the New Sudan Council of Churches (NSCC) in South Sudan led to the signing of a series of local peace agreements, including the Wunlit Dinka Nuer Covenant and Resolutions in 1999. While this series of agreements was not technically linked to a national process between the government in Khartoum and South Sudanese opposition forces, the ‘people-to-people’ process contributed to the creation of a peace movement in southern Sudan and fostered ‘Southern unity.’

Conclusions

In this post, and throughout our work with local peace agreements more broadly, we have argued that we cannot understand the increasing fragmentation of conflict management and peacemaking without turning our collective attention to peace processes beyond national arenas of peacemaking, and analysing the involvement of armed groups in local peace processes. Through our own efforts to research this, by compiling PA-X Local and through Joint Analysis Workshops with actors involved in local peace processes, we suggest that local peace processes are a global practice across diverse conflict settings, and the documents resulting from this practice are just one initial avenue for shedding light on the opportunities and challenges that local peace processes pose.

Business and Armed Non-State Groups: Where Do We Stand?

June 17, 2020
Lafarge Factory in Syria © Stefan Mako

Dr. Jelena Aparac holds a PhD in international public law. Her dissertation focused on “International criminal liability of corporations for international crimes committed in non-international armed conflicts”. She also holds an LLM from the Geneva Academy of International Humanitarian Law and Human Rights. Dr. Aparac is a lecturer in international humanitarian law, human rights, international criminal law and international refugee law. She has given lectures and conferences at academic institutions around the world and has contributed as an independent expert to various intergovernmental discussions on issues related to international peace and security. As a field worker and legal advisor for Médecins sans Frontières, Dr. Aparac worked in conflict areas such as South Sudan, Chad/Darfur, the Democratic Republic of the Congo and the Central African Republic.

While nowadays it is widely accepted that non state actors play important roles in international relations, the specific traits of obscure relationships between two or more non-state actors remain unclear and insufficiently explored. In my recent contribution to the Business and Human Rights Journal entitled “Business and Armed Non-State Groups: Challenging the Landscape of Corporate (Un)accountability in Armed Conflicts”, I highlighted three recent events in the context of business and human rights in armed conflicts: the Lafarge case, the 33rd International Conference of the International Committee of the Red Cross (ICRC) and the International Criminal Court (ICC) Prosecutor’s statement on corporate liability. I argue that all three of these events in their own way demonstrate how the activities of armed non state groups (ANSGs) challenge the traditional doctrine of international law and demonstrate the need for its norms to adapt to an evolving reality.

Cases involving ANSGs and businesses are complicated because they involve two non-State actors. These actors, whether multinational corporations or armed non-state groups, rarely fall under the doctrine of State responsibility. By their very nature, ANSGs are not considered full subjects of international law: their relationship with their “commercial partners” cannot be subject to contracts and are presumed illegal under the domestic law. At the same time, multinational corporations escape accountability for their involvement in international crimes before international courts, but they are entitled to jus standi before international economic institutions and can claim their “human rights” before international tribunals.

Challenges before domestic courts

Before domestic courts, there are limited cases of corporate liability. Even though some civil cases have resulted in settlements with plaintiffs, in most of the cases there is no jury verdict. Recently in a case of Nevsun before the Canadian Supreme Court, the plaintiffs brought the claim against Nevsun Resources operating the Bisha mine in Eritrea for violation of the international customary law as incorporated in the law of Canada including crimes against humanity. The Court, in a judgement more favorable to the plaintiffs, authorized the lawsuit to proceed, thereby dismissing Nevsun’s appeal.

In the context of criminal cases against corporations, a public prosecutor can instigate a prosecution, but often faces legal, logistical, political and diplomatic challenges when a case spans several jurisdictions.

The milestone criminal case, Lafarge is testament to some of these challenges. It concerns a strategic French cement company accused of financing ANSGs in Syria under French criminal law and procedure. The company was indicted for crimes against humanity and financing of terrorism, among others charges, before the specialized War Crimes and Crimes Against Humanity Unit of the Paris Tribunal de Grande Instance (Office of the Public Prosecutor). My article analyzes the Paris Court of Appeal’s decision from 2019 to drop charges of crimes against humanity against Lafarge, and expounds upon the challenges that investigators face when collecting proof of complex international crimes committed by non state actors in war zones outside of their jurisdiction.

Proliferation of ANSGs and their business relationships

The developments in the Lafarge case must be understood alongside another event that took place just a month later: ICRC’s 33rd international conference held in December 2019. The conference’s report highlights the transformation of contemporary armed conflicts through the proliferation of ANSGs. It is well known (for example see here (paras 47-88), here (paras 72-78 and 153- 165) and here) that in order for ANSGs to sustain their military capacity, they depend heavily on various corporations—from arms dealers to private banks to companies involved in the extraction of natural resources, as well as suppliers throughout the value chain and the final buyer. Consequently, the proliferation of ANSGs in contemporary armed conflicts will almost inevitably imply an increase in the complexity of their economic relationships with various business entities to which neither domestic nor international law is adapted.

Constricted access to transitional justice

Against this background, the ICC Prosecutor’s declaration in November 2019 indicating a focus on business activities can be seen as a positive step forward. She stated that “[t]he ICC may exercise jurisdiction over persons who, through business activities, either contribute or directly commit international crimes under the Rome Statute”. Currently, this means that corporate directors of multinational corporations contributing directly or indirectly to international crimes through the actions of ANSGs could stand trial under the Rome Statute. Even though countless private and NGO reports (see here, here, here and here) have documented corporate roles in some situations under ICC jurisdiction, so far there have been no indictments against any corporate directors of multinational corporations.

These developments expose some of the deficiencies in the current fact-finding and documentation of corporate crimes. On a domestic level, it is an enormous challenge for any investigator to document corporate crimes in armed conflicts taking place in another country, particularly when this requires mutual legal assistance and inter-State cooperation. Politically sensitive issues could be better addressed by international investigators unrelated to any State. Having been trained to investigate complex crimes in hostile environments, they could better overcome some of the security and logistical obstacles. And yet, international fact-finding missions (mostly under the UN) are not investigating the role of multinational corporations in armed conflicts and have limited mandates to investigate ANGSs.

To the extent that corporations play a fundamental role in armed conflict, documenting their wrongdoing is directly related to the protection of international peace and security and to the process of transitional justice. Moreover, the link between the illegal exploitation of natural resources and armed groups is regularly identified as one of the drivers of conflicts around the globe, mainly to support ANSGs. Most fact-finding missions today collect documentation in the contexts of armed conflicts, but exclude corporate actors from their investigations. Documenting the role of multinational corporations in illegal(and legal!)exploitation of natural resources contributes to establishing a certain truth and could provide a more accurate picture of the conflict, including the roles played by both local and external actors. Notwithstanding the sanctions, the recognition of responsibility through coherent public reports contributes, at least partially, to the truth telling process and the appeasement of the post-war society. Finally, without proper investigation and documentation of corporate crimes, there can be no effective accountability and no coherent transitional justice.

Adapting the normative framework to contemporary contexts

Ultimately, the timing for these discussions is fundamental. The future United Nations Treaty on transnational corporations and other business enterprises with respect to human rights is entering a new phase of its negotiations, and in developing its content, it is crucial that this process includes an awareness of the complex webs connecting armed and unarmed non state actors. Similarly, if the Rome Statute is to be open for amendments to include corporate liability, these types of relationships need to be further explored. Otherwise, future legal developments cannot be adapted to the very situations that they are intended to regulate, thus undermining their legal regimes. As such, critical discussions of transitional justice by addressing socio-economic aspects of contemporary asymmetric armed conflicts and the role corporations play in them is required for achieving true transitional justice and sustainable peace.

Extraterritorial Cases and National Accountability: the Liberian Quest for Justice

June 15, 2020

Emmanuelle Marchand is a Senior Legal Counsel and the Head of the legal unit for Civitas Maxima a network of lawyers specialized in the investigation of international crimes and legal representation of victims of such crimes.  Since 2013, she has been working on Civitas Maxima cases and has been conducting investigation on international crimes committed in West Africa including conflict related SGBV. She also acts as consultant for the Institute for International Criminal Investigations (IICI) and provides trainings on different aspects of international investigation (including CRSGBV) for both NGOs and UN.  For more than 10 years she has been working on international cases including at the Extraordinary Chambers in the Courts of Cambodia, the International Criminal Tribunal for the former Yugoslavia, the African Extraordinary Chambers and war crimes cases at national level.  She graduated with degrees in International Law and Human Rights from the University of Paris II Panthéon Assas (Master)  and the University of Aix en Provence (Master).

Lisa-Marie Rudi, Deputy Head of the Legal unit, has been working at Civitas Maxima since 2014. She contributes to the majority of Civitas Maxima’s cases through her legal and analytical work, collaborates with various authorities in charge of international criminal cases in several jurisdictions, and conducts investigative missions in West Africa. She also works on investigative and operational capacity building of Civitas Maxima’s Liberian sister organization. She holds an LLM from the University of California at Berkeley Law School and law degrees from the Netherlands and Switzerland. Prior to joining Civitas Maxima, Lisa has worked as an intern/consultant at several international tribunals (ECCC, ICC, EAC) and as a researcher for the Berkeley Human Right’s Center’s Sexual Violence Program.

LIBERIA: LAND OF IMPUNITY

Between 1989 and 2003 Liberia suffered two violent civil wars (1989-1996 and 1999-2003) which resulted in the death of more than 150,000 civilians and the commission of a wide range of human rights abuses by all warring factions involved in the conflict. The scale and horror of the atrocities inflicted upon Liberia’s civilian population is hard to apprehend.  Sexual violence was widespread, more than 2 million people were displaced, and 38 000 child soldiers were recruited. The impact of the war can still be seen today as the violence also caused a breakdown of governance and economic systems. The purpose of this blog post is to illustrate that despite the fact that there are no international criminal mechanisms with competence over the crimes that were committed in Liberia, it has still been possible to find different fora to bring justice against the Liberian perpetrators, which has had an impact on the Liberian fight for the establishment of an accountability mechanism.

The authors work for Civitas Maxima, an NGO that facilitates the documentation of international crimes, and pursues the redress of such crimes on behalf of victims who do not have access to justice.

Lack of political will to prosecute

To date, no one has been held to account in Liberia despite some steps taken towards Justice and national reconciliation immediately after the war. Indeed, a Truth and Reconciliation Commission (TRC) was created in Liberia as part of the 2003 Peace agreement. Established in 2006, the TRC was tasked with investigating the gross human rights violations that occurred in Liberia between January 1979 and 14 October 2003. In the final report published in 2009, the TRC called for the creation of an “Extraordinary Criminal Court for Liberia”, commonly called the “war crimes court” to try 116 people identified as having committed serious crimes.  However, the recommendations were never implemented. One of the reasons invoked is that the TRC report targeted  persons who still held positions of power and influence in the country, such as Senator Prince Johnson, one of the most well-known former leaders of armed groups whose brutal crimes have been well-documented, or former President and Nobel Peace Prize recipient Ellen Johnson Sirleaf, who was listed to be excluded from public office for 30 years. She remained in service for the full length of the constitutionally permitted terms.

Lack of competent international mechanism with jurisdiction

Similarly, no international criminal mechanism has competence over the gruesome human rights violations committed in Liberia. The UN ad hoc tribunal set up in neighbouring Sierra Leone – a country that suffered a closely linked civil war that ended in 2002 – was only competent to  try the crimes committed in the country and was not tasked with dealing with the violations that occurred in bordering Liberia. As an example, Charles Taylor- former President of Liberia during the war and former head of the National Patriotic Front of Liberia (NPFL), one of the Liberian rebel factions, was judged and sentenced by the Special Court exclusively in relation to his involvement in the Sierra Leonean civil war. Moreover, the Rome Statute, that established the International Criminal Court was only ratified by Liberia in 2004 and thus the crimes committed in the country fall outside of its competence rationae temporis.

EXTRATERRITORIAL CASES: A CHANGE OF PARADIGM

Fighting for Justice internationally

While the majority of Liberians were yearning for justice, people generally did not dare to speak about their desire for accountability publicly for fear of retaliation.  Similarly, the Global Justice and Research Project (GJRP) – our partner organization  and the only local NGO documenting the crimes committed in Liberia – worked strictly undercover. In order to palliate this situation, the GJRP in cooperation with Civitas Maxima started to identify new tools to hold perpetrators to account and bring justice to victims of international crimes. One of these tools is the use of extraterritorial jurisdiction: We started building cases against alleged perpetrators located abroad.  In a few years several alleged perpetrators were arrested in Europe on the basis of jurisdiction based on the active personality principle. The first ground-breaking cases happened in 2014 in Belgium and Switzerland with the arrests of Martina Johnson and Alieu Kosiah, two Liberian armed group commanders. Those cases were followed by the arrests of  Agnes Taylor in the UK, Kunti K. in France and Gibril Massaqoui in Finland.

In parallel, we used immigration law to bring cases in the US against Liberia’s alleged perpetrators. The trial for immigration fraud of alleged war criminal Mohamed Jabbateh, a/k/a “Jungle Jabbah” started in October 2017. Jabbateh was charged by the U.S. Attorney’s Office with fraud in immigration documents and perjury. Indeed, when making his application for asylum and later for permanent legal residency Jabbateh was not truthful about his activities during Liberia’s First Civil War while he was a member of The United Liberation Movement for Democracy in Liberia (ULIMO) and later ULIMO-K, a rebel group that battled for control of Liberia. According to the indictment, Jabbateh, during his time as a ULIMO commander, either personally committed, or ordered ULIMO troops under his command to commit crimes such as torture, rape and murder. This historic case marked the first time that Liberian victims were able to testify about their experience of the atrocities committed during the First Liberian Civil War in a public and fair criminal trial. “Jungle Jabbah” was sentenced in April 2018 to 30 years in prison.

The same strategy was used against Thomas Jucontee Woewiyu, former Minister of Defense and Spokesman of the NPFL during the First Liberian Civil War. He faced trial in the U.S in June 2018 and he was convicted by a jury who found him guilty of 11 counts of immigration fraud and perjury for lying to the immigration authorities about his role in a rebel movement during the First Liberian Civil War (1989-1996). It was the first ever trial of someone who held a ministerial position with a major rebel faction during Liberia’s Civil Wars. Sadly for the victims, Woewiyu died in April 2020 of COVID-19 before the pronouncing of his sentence.

Bringing Justice home

Thanks to outreach campaigns, all the cases happening abroad were widely covered by the media in Liberia reinitiating the dialogue about Justice in the country. In 2018 – emboldened by the extraterritorial cases against alleged Liberian war criminals, as well as by the peaceful transition to a new President who had no role in the war – people from different spheres of Liberian society began to join forces to push openly for accountability for atrocity crimes. In February 2018, the influential Liberian Council of Churches joined the call for the implementation of the recommendations of the Liberian TRC. In March 2018, the United Nations (UN) Deputy Secretary-General, reminded the newly-elected President of Liberia that it was time to implement the TRC recommendations.

People started marching in the streets of Monrovia, calling for the establishment of a war crimes court. In May 2018 a rally was organized to deliver a petition to the House of Representatives for the establishment of such a court in Liberia. The petition received several thousand signatures. 2018 also saw Liberia’s first ever review before the UN Human Rights Committee (the Committee) in Geneva. A coalition of 76 Liberian, African, and international nongovernmental organizations filed a submission urging the UN and the Liberian Government to address ongoing impunity for past atrocity crimes in Liberia. Consequently, in July 2018, the Committee issued its formal concluding observations expressing “concern that none of the alleged perpetrators of gross human rights violations and war crimes mentioned in the TRC report, has been brought to justice, and that some of those individuals are or have been holding official executive positions, including in the government.”

In August 2018, the Joint Committee on Claims and Petitions of the Liberian Parliament held a hearing on the establishment of a war crimes court and in November of the same year a National Justice Conference organized by a coalition of national and international NGOs as well as OHCHR was  held. It brought together for the first time former TRC commissioners, civil society and government actors  to discuss the issue of accountability. Since  the conference, the calls for the establishment of a Court have continuously grown louder. In May 2019, the Independent National Human Rights Commission organized a colloquium on the implementation of the TRC recommendations, which featured many high-level attendees and a clear unanimous call for the establishment of a Court. In July 2019, a Legislative Conference was organized. A group of lawmakers had been working on a resolution to be submitted to members of both houses to rally support for the establishment of a court while the Liberian Bar Association had produced a first Draft Act to serve as a blue print for a potential bill establishing the Court. During the conference, participants worked on the resolution and the draft bill with international experts.

Shortly after formally asking the national legislature to advise him on the setting up of a war crimes court, in September 2019, President Weah addressed the UN General Assembly in New York and acknowledged that “(…) there has been a rising chorus of voices from many quarters, calling for the establishment of an Economic and War Crimes Court. These voices include not only thousands of war victims, but also some of the alleged perpetrators, who seem to wish to either clear their names or their conscience”. He asked for support from the international community on the matter. Since the end of the Civil Wars, Liberians had never heard their President acknowledge their desire for justice in such an explicit way. Upon Weah’s return from New York. he seemed to backpedal saying that he was, in fact, more concerned about fixing the country’s dwindling economy than about establishing a court.

Liberians are still waiting for the resolution calling for the establishment of a war crimes court to be put on the agenda for discussion in the Lower House of Parliament. After the aforementioned legislative conference, the resolution obtained 51 signatures, more than were needed to put it on the agenda, but it appears to be politically blocked. Similarly, the work on the draft bill has stagnated.

Even though there is still a long way to go until the establishment of a war crimes court in Liberia, there is no doubt that the extraterritorial cases spearheaded the current national movement for Justice and accountability in the country as well as the renewed calls for the implementation of the TRC report.  The Liberian quest for Justice is a good example of the impact of strategic litigation or how bringing a case to a courtroom can lead to broader changes in society.

COVID-19: three conflict parties express their views on ceasefires and the response to the pandemic

June 9, 2020

Nicolas Sion is the Head of Development of Fight for Humanity, a non-partisan, impartial and independent non-governmental organization that seeks to reinforce respect for the rights of people exposed to human rights abuses in neglected areas. ​

On 14 May 2020, Fight for Humanity hosted an online panel with several conflicting parties that answered the United Nations Secretary General’s global call for a ceasefire to fight the COVID-19 pandemic. The event was attended by 250 participants including from States and UN agencies, international and national NGOs working on humanitarian and peace issues, and students. If you missed the event, you can watch a summary here:

Representatives from the Syrian Democratic Forces, the Southern Transitional Council from Yemen, the National Democratic Front of the Philippines, as well as humanitarian and peace practitioners, expressed their views on what could be done to use this opportunity for peace, as well as to explain their own responses to the COVID-19 crisis. Links the various interventions can be found here.

The COVID-19 impact on ceasefires and peace processes

The three representatives from conflict parties explained that they adhered to the call, hoping that it could support peace efforts: “We hope that the ceasefire would help in solving the political problems and have a lasting solution, so that all the people in the Philippines could take measures to protect themselves from COVID-19,” said Louie Jalandoni from the National Democratic Front of the Philippines.

Nesrin Abdullah, of the Syrian Democratic Forces, stressed the unifying potential of the global call “We see the call as a holy chance for peace. The pandemic is threatening all the world, so the world is in need of global peace.”

Despite this initial hope, the reality of the conflict returned quickly, leading to the suspension of some ceasefires. “We can’t put too high expectations that a humanitarian ceasefire will automatically create an opportunity for political dialogue. The fact that political dialogue doesn’t follow immediately isn’t necessarily a failure. It is always good for people suffering from armed conflict to have relief,” concluded Kristian Herbolzheim, from the International Catalan Institute for Peace.

The response to COVID-19 crisis in countries affected by armed conflict

The virus is affecting the lives, health, livelihoods, and education of billions of people, especially the estimated two billion people living in conflict-affected states. In such countries, with limited healthcare systems, vulnerable communities, displaced persons and refugees find themselves in restricted areas with limited sanitation. Irenée Herbert from the ICRC stressed that “it’s a crisis on top of other crises. It has weakened the weak, it has strengthened the strong”.

With more than 1 million people in refugee camps, 9’000 ISIS detainees and 70’000 family members of ISIS fighters in the territory under their control, the Syrian Democratic Forces feel isolated in their fight against the COVID19: “We’re under siege. There is political isolation, […] all the border crossings are closed. Even if we would want to bring, by our own means, equipment or humanitarian aid or support, we can’t, because all the border crossings are closed.”

However, even with limited resources, the three conflict actors took measures against the pandemic: “We tried to do awareness campaigns, […] we tried to prepare hospitals specially for the treatment of COVID-19 and we tried to facilitate the actions of the World Health Organization also, which provided 2,000 test kits, plus 7 ventilators” said Amr Al-Bidh, of the Southern Transitional Council in Yemen. He stressed the willingness of the Southern Transitional Council to facilitate access and guarantee security for international support.

The pandemic is not only threatening the life and medical systems in these areas, it has also affected humanitarian aid: “Clearance operations of mines have been suspended since 19th March. You can imagine how many minefields and cluster munition areas we could have cleared if there was no COVID-19” commented Bidi Salec from the Sahrawi Mine Action Coordination Office.

“However, this pandemic gives us an opportunity to think differently; parties to the conflict can make concessions in this special moment that they would not make in normal times. If not now, when?” concluded Mehmet Balci, Fight for Humanity’s Co-Director.

Human rights derogations/ restrictions in the time of COVID-19: what is their relevance in situations where an armed group or de facto entity controls territory?

May 22, 2020

Katharine Fortin is an Assistant Professor at Utrecht University where she teaches international humanitarian law and international human rights. Before joining Utrecht University, she worked at the ICTY, ICC and Norton Rose Fulbright. She is the author of The Accountability of Armed Groups under Human Rights Law (Oxford University Press, 2017) which won the 2018 Lieber Prize. Katharine has written widely about the framework of law that applies to armed groups in non-international armed conflicts and she is one of the editors of the Armed Groups and International Law blog. She has recently started a 3-year NWO-Veni research project called ‘Dangerous Liaisons: civilian agency, armed groups and international law’.

As we scramble to understand how international law governs the COVID-19 crisis, it has been rightfully said that it is important not to forget the hundreds of thousands of people who are living in territories controlled by armed groups. Although international humanitarian law will undoubtedly protect the people living in these territories, some of the norms found in the human rights framework will also likely be of great relevance to people’s everyday life (see here). Indeed, the norms that have been put most under pressure during this time are dealt with very squarely by the human rights framework: the right to freedom of movement, freedom of assembly, the right to work, the right to education and the right to health. It is interesting to note that of the fourteen countries who have now deposited notifications of derogations to the International Covenant on Civil and Political Rights (ICCPR) since early March 2020, all of them have indicated that they are derogating from Article 12 (right to freedom of movement) and Article 21 (the right to freedom of assembly). These are both rights that are not found in international humanitarian law in non-international armed conflicts

The recent spate of derogations by States in the context of the COVID19 crisis has prompted a lot of fascinating commentary on blogs, with authors studying their legality, desirability and legal effect (see here, here, here and here for just some of these posts). There has so far been no analysis of the effect that State’s derogations could have on the rights of people living in territories under the control of armed groups or de facto entities. There has also been little discussion of whether armed groups themselves might be able to limit their human rights obligations in these (or other) circumstances. The importance of considering this second matter was made clear by the recent post by Marcos Kotlik and Ezequiel Heffes (see here) demonstrating that armed groups are taking very similar measures to States in situations where they control territory: telling people to stay home and closing schools and workplaces. This post provides some initial reflections on these interesting but little-studied issues, focusing its analysis on the ICCPR framework. It starts by examining the practice of State derogations, with respect to territories outside their control. It then continues to see whether there are any means available to armed groups to restrict their human rights obligations in a similar way.

The use of derogations by States suffering a loss of territorial control

When considering the effect of State derogations on territories under the control of armed non State actors or de facto entities, it is first helpful to understand how derogations have previously been used in these contexts. At first glance, it may be thought to make some sense that a State would derogate if it lost control of territory, as the wording of Article 4 of the ICCPR refers to ‘public emergency’ which is ‘threatening the life of a nation’. But it is interesting to note that there have been very few situations in which a State has derogated from the ICCPR in these circumstances. Although both Moldova* (which has little control over Transnistria) and Georgia (which has little control over South Ossetia and Abkhazia) recently submitted notices of derogations during the coronavirus crisis, neither State had previously attempted to derogate from the treaty in relation to their break away regions. Other key States that have lost control over portions of their territory have also not derogated from the ICCPR in these terms or on that basis e.g. Syria and Iraq.

The only instances that I have been able to find where a State has referred a the loss of territorial control in its derogation notices are the notification notices filed by Ukraine. In each of the notifications filed by Ukraine it has first asserted that Russia is fully responsible for the respect and protection of human rights and international humanitarian law in the areas of Donetsk and Luhansk over which it has effective control. In the notifications that Ukraine filed in 2015 and 2016, it seems to be derogating only with regard to the listed districts of Luhansk and Donetsk that were wholly or partially under the control of the Ukrainian authorities. The document does not list localities and districts under the control of armed groups, despite noting that these amounted to 28% of the territory of the Donetsk oblast and 15% of the territory in the Luhansk oblast (see here and here). Reading between the lines, it appears that Ukraine was derogating in territories under its total or partial control to make space for the emergency and military measures it needed to take in order to take back and retain full control of these areas.  In a later notification in 2019, Ukraine does include a list of localities and settlements in Luhansk and Donetsk over which it has lost control (see here). The legal relevance of this list is hard to fathom from the text, but on balance I have the impression that Ukraine is still not attempting to derogate in relation to these areas.

The relative absence of State derogation notices in such situations can be seen to reflect the fact that the philosophy of the derogation regime is to provide a ‘get out clause’ to excuse the deliberate adoption of emergency measures by a State e.g. the passing of emergency laws, prolonged detention, restrictions on movements. The derogation regime is not understood to extend to situations where a State has become unable to adhere to its obligations under human rights law due to a lack of capacity. Although there are some examples of a State derogating in such circumstances (see here for an example of Colombia depositing a notification due to the temporary malfunctioning of its judicial system) one can see that this is generally undesirable, as derogations may be used by States to excuse a lack of effort or lack of capacity. If such practice were to become widespread, the legal framework would quickly lose its normative edge. Derogations in these circumstances would also likely go against the idea that derogations should be temporary (see here for what ‘temporary’ means). Perhaps most importantly, derogations in these contexts are not necessary as it is well known that States are not expected to respect and protect human rights in circumstances where they are prevented from doing so by a de facto situation, such as a separatist regime or military occupation (para 333, Ilascu v Moldova and Russia).

The effect of derogations by States on ANSAs/ de facto entities

It is interesting that the recent notifications of Moldova* and Georgia sought to extend their derogations to the whole of their territory (see here and here), despite these States having lost control over parts of their territory. It raises the question of whether derogations by States in these circumstances could ever be said to have legal effect in a territory under the control of armed groups. And if so, whether an armed group could rely on such a derogation to avoid a violation? Or whether the act of derogation should provide a reason for an international organisation to hold the armed group to account to a lesser standard, with respect to the derogated rights? These are questions without easy answers. They first require a consideration of the source of human rights obligations for armed groups: customary international law or treaty law (see here, here and here for this discussion). If the source of human rights obligations is customary international law – and many statements by international accountability mechanisms seem to support this view – the question of the territorial State’s derogations from its obligations probably has less relevance. Even when it is accepted that armed groups can also be bound by human rights treaty law (as I have argued), it is unclear whether a derogation by the State party to the treaty could be held valid in the relationship between that group and the people living under its control. The principles of legality and rule of law require derogations to be accompanied by a proclamation of emergency. There is also an expectation that emergency powers will be implemented through national law, as affected populations have the right to be aware of the new legal rules, so that they can adjust their behaviour. While a country with a break-away region may have proclaimed an emergency and passed emergency laws, I am sceptical about whether these actions by the State would have meaningful effect in the break-away region.

Armed groups derogating from human rights law

This leads me to the final question of whether armed groups can themselves subject rights such as freedom of movement or freedom of peaceful assembly to restrictions. This question is not only relevant to these COVID19 times, as armed groups very often operate in settings where an ‘emergency dynamic’ has become the normality. The issue of whether armed groups can derogate from human rights treaties has hardly been examined in the literature (except very briefly here). It has been mentioned already that the term ‘derogation’ is linked to the treaty law system of human rights law which is undeniably State-based, in its procedural and institutional architecture. This is seen in the wording of Article 4 of the ICCPR which requires derogations to be based on an ‘emergency facing the nation’ and requires derogating States to notify ‘other States Parties’. The whole philosophy of derogations is based on the sovereignty principle, in that it gives States the opportunity to ‘take back’ a portion of their sovereign rights, in circumstances where the existence of their nation is a threat (see here). In a situation of armed conflict, there are several conceptual obstacles with the idea that an armed group should be able to utilise that mechanism. Perhaps most importantly, it could be questioned whether armed groups have anything equivalent to sovereignty over their territory that can be legitimately defended under international law by a restriction of rights.

But when the wording ‘emergency facing the nation’ is applied to a situation of pandemic, one might argue that it makes conceptual sense that an armed group should also be able to rely upon such a clause. Here, the focus could be on a people-oriented concept of emergency, rather than a national security concept of emergency. We then need to consider the relevance of procedural aspect. Although some human rights treaty bodies have recently showed signs of a willingness to extend their scope to armed groups (see here) and although literature and practice seems to be creeping towards a gradual acceptance of armed groups being bound by human rights law (see here, here , here and here), armed groups remain outside the procedural mechanisms of the human rights system (see here). It is not clear how much this matters in this instance, as Article 4 requires notifications to be submitted to the UN Secretary General. Even more significantly, there is a debate as to whether a notification is even needed for a derogation to have legal effect (see here, here and here).

Armed groups placing limitations on the enjoyment of human rights

On balance, I think it makes better conceptual sense to say that armed groups can put restrictions on their human rights obligations through limitations, rather than derogations. There has been a lot of questioning over the last months whether it iseven appropriate to be talking about derogations in the time of COVID-19, in relation to the key rights which are repeatedly being derogated from i.e. the right to freedom of association and the right to freedom of movement. Indeed, the Human Rights Committee stated long ago that when the treaty text provides the opportunity for rights to be limited, derogations are inappropriate (see General Comment 29). It repeated this view recently in its statement on the COVID-19 crisis giving explicit mention of Article 12 (right to freedom of movement) and Article 21 (the right to freedom of assembly). Expressing a preference for this route may offer some protection against attempts to effect a wholesale suspension of a treaty provision by way of derogations (a practice which although prohibited, is nevertheless sometimes attempted, see here and here). States are encouraged to articulate their limitations according to the framework of legal protections that are well known (i.e. law, necessity, proportionality, prohibition of discrimination).

Should it be agreed that this is the correct way to proceed (for a convincing defence of the derogation system see here), this does not get us completely out of the woods when looking at armed groups. The language surrounding limitations found in, for example, Articles 12 (right to freedom of movement) and 21 (the right to freedom of assembly) of the ICCPR also provides challenges when applied to armed groups. First, it requires consideration of how terms like ‘in conformity with the law’ and ‘provided by law’ should or can be interpreted. This question has been much analysed of late in relation to discussion on armed groups and detention and fair trial (see e.g.  here and here). It also requires attention to how terms like ‘national security’ and ‘democratic society’ should or could be interpreted when it comes to armed groups. In my view, none of these terms need be seen as insurmountable obstacles, but they are certainly issues that need more focused consideration (see here, p165-6).

Conclusions

This post has identified and analysed the different ways in which restrictions on human rights may be implemented in territory held by armed groups and de facto entities. It has raised several issues for further consideration and also pointed out some procedural and conceptual problems. Ultimately, the conclusions of this post reinforce the message regarding the extreme vulnerability of individuals living outside the control of the de jure government. While remaining ‘rights-holders’, these individuals find themselves outside the scrutiny of the human rights procedures dedicated to protecting these rights.

NB: Actions taken by armed non State actors to adopt policies and implement measures to prevent and mitigate the spread of COVID-19 can be tracked here on Geneva Call’s ANSA COVID-19 Response Monitor.

*Moldova notified its derogation to the UNSG on 18 March 2020. It notified the UNSG of the termination of those provisions on 18 May 2020.

My thanks go to Kushtrim Istrefi for his useful comments on an earlier version of this post.

From cockroaches to rosebuds: changing the international community’s perception of non-State armed groups

May 21, 2020

Annyssa Bellal is a Senior Research Fellow and Strategic Adviser on International Humanitarian Law (IHL) at the Geneva Academy of IHL and Human Rights and a Senior Lecturer in international law at Sciences Po, Paris, the University of Bern and the Geneva Academy.  She also worked as a legal adviser for the Swiss Federal Department of Foreign Affairs, the Office of the High Commissioner for Human Rights, the International Committee of the Red Cross and Geneva Call. Her area of expertise includes international criminal law, IHL and human rights law, with a focus on the issue of armed non-state actors. She recently briefed the UN Security Council on the occasion of the 70th anniversary of the 1949 Geneva Conventions on these different issues.

The 2019 ICRC so called ‘Challenges Report’ has identified the ‘proliferation of non‑State armed groups’ (NSAG) as being a central feature of ‘the changing geopolitical landscape of the last decade’. It is undeniable that the existence of a multiplicity of NSAG in a given context creates serious challenges for humanitarian and aid organisations, not only from an operational, but also from a legal point of view as discussed in the ICRC report.

I am grateful to the editors of this great blog to have given me the opportunity to sketch some thoughts of this complex matter. In this short piece, I will argue that it is time to consider the existence of NSAG not only as a challenge, but also as an opportunity for better and more effective protection of the persons living under their control.

Words matter

NSAG considered as a challenge, as a ‘negative phenomenon’ is implicit in the word ‘proliferation’ used not only by the authors of the report, but also more generally in policy papers.  While being a neutral term per se, when something ‘proliferates’, it is usually not a good sign. The online venerable Larousse French dictionary, defines proliferation as the ‘rapid multiplication of living beings or things’, as in ‘the proliferation of cockroaches’, the Oxford Learners dictionary speaks of the proliferation of cancer cells. In a closer context from us, the international community has tried to address for years the ‘proliferation of nuclear weapons’. Given the implicit connotation of the word, it should not come as a surprise that speaking of the proliferation of NSAG can sometimes be perceived negatively like the uncontrollable spread of a disease – or worse disgusting insects – having unfathomable consequences for the international community.  To push the comparison further, because NSAGs are often associated with terrorism, there is only a small step, that States will easily take, leading to the discourse that all means, even the most radical, are needed to combat this disease and the threat caused by the proliferation of its dangerous cells.

That being said and oddly, the Larousse dictionary also associates the word ‘proliferation’ with the ‘apparition of a flower button.. on the part of a plant which usually does not have one’. In that sense, the proliferation of NSAG could be the signal that changes are needed in a society or even inaugurate new beginnings, like the emergence of rosebuds in a previously dry and hostile environment. One could wonder why then, before ‘proliferating’, do NSAG appear at all or in other words, why do individuals seem to resort more to collective armed violence today than ten years ago as the ICRC report notes?

The causes of the collective resort to armed force

Obviously, this question is beyond the scope of the Challenges report and of the present modest contribution. Suffice to note that there are of course many reasons why individuals decide to join NSAG or are forced to join them, going from ideology, access to economic resources to peer-pressure. Human rights violations are also well-known reasons leading to internal dissent that can transform into non-international armed conflicts, as exemplified by at least two of the most recent conflicts, where numerous NSAG operate (in Syria and Libya) which were born out notably of the repression of the Arab Spring movement. In these last scenarios, because of the grassroots origin of the uprisings, NSAG are often very close to their constituencies, at least at the beginning of the conflict and it is often human rights law that is the main referent of NSAG involved in the conflict. For example, the ‘Free Syrian Army’ proclaimed their commitments to ‘the principle of non-discrimination, equality, freedom of expression, thought and conscience as well as on the freedom of association and assembly, among other human rights. The reference to human rights law by NSAGs is not unique to groups fighting to react to repressive regimes. The Colombian NSAG FARC-EP ‘Rules of Conduct with the Masses’ of 2009, encourages the group to ‘respect the political, philosophical, and religious ideas and attitudes of the population, and in particular the culture and autonomy of indigenous communities and other ethnic minorities’ and ‘not prevent people from exercising their right to vote, nor force people to vote’.

Human rights law and NSAG

From these few cursory examples, one can observe that some NSAG at least commit or claim to respect human rights in addition to – or sometimes rather than IHL. It is within this context, that I would like to discuss the relevant paragraphs of the ICRC Challenges Report on the ‘protection of the human rights of persons living in territory under the de facto control of armed groups’ (p. 54). I will not repeat here the legal and theoretical arguments developed extensively by the scholarship, including by one of the editors of this blog, on whether NSAG are bound or not by human rights law.  Whatever the position adopted by humanitarian organisations on a de jure or de facto recognition of the human rights responsibility of NSAG, it seems logical to look at what these actors have to say on the matter in the first place, rather than imposing on them a pre-conceived legal framework that does not reflect their needs, characteristics or own commitments. Including NSAG in the discussion about the scope of their human rights, but also IHL obligations would also increase the effectivity of the legal system, which is supposed to govern their behaviour and inform meaningful strategies of engagement. This seems even more true as it has been shown that some NSAG have in fact also respected international norms in certain circumstances.

The importance of capacity building

If one talks about the human rights responsibilities of NSAG, capacity building is relevant. As the Challenges report notes: ‘while non‑State armed groups are, clearly, able to refrain from violating basic human rights, many will not have sufficient capacity to comply with the more sophisticated obligations deriving from human rights law, in particular obligations to take positive measures to protect and fulfil human rights’. I believe that an NSAG that exercise ‘stable control over territory and is able to act like a State authority’ – the type of actor for which the ICRC would recognise de facto human rights responsibilities – would possess the necessary capacity to fulfil positive obligations, at least in no lesser extent than weaker or poorer States. It is clear that not all NSAG possess enough resources to implement capacity-intensive international obligations (or positive obligations). Here it should be reminded that this is not only an issue for human rights law. Some IHL norms also require a certain level of resources or capacity to be implemented, such as conducting fair trials or collecting and protecting the wounded and sick as required by Common Article 3, or providing for education under AP II.  In that regard, the ICRC position to recognise at least at as a matter of policy the human rights responsibilities of NSAG that control territory and perform state-like functions should be welcomed. It should convince human rights organisations, including the OHCHR, to engage with NSAG on capacity-building and overcome State political pressures. Such support, for a better implementation of human rights will benefit the persons living under the control of NSAG and enhance the rule of law, especially in situations of protracted situations of armed violence.  To this end, the perception that the international community have of NSAG must change. These actors should be considered in some circumstances also as partners, or at a minimum as capable of producing positive outcomes even conducing to transitional justice and peace processes and not only as violent actors, which ‘proliferation’ should be controlled.

 

Developing international law in territories controlled by armed groups: upholding life-saving conditions – but what about promoting political and legal legitimacy of non-state authority?*

May 21, 2020

Amrei Müller is a Lecturer/Assistant Professor (Ad Astra Fellow) at University College Dublin, Sutherland School of Law. Her areas of expertise comprise (comparative) human rights law and international humanitarian law, including the duties and responsibilities of armed non-state actors.  

The ICRC’s 2019 report on International Humanitarian Law on Challenges of Contemporary Armed Conflicts identifies the protection of persons living in territory under the control of armed groups as one of the main practical and legal challenges facing IHL, the ICRC and the broader international community today (pp.52-54). These challenges arise inter alia from the fact that it remains unclear how gaps in international humanitarian law (IHL) applicable to non-international armed conflicts (NIACs) shall be filled when it comes to regulating numerous aspects of the day-to-day interaction between armed groups and persons who come under their influence and control. This post suggests that the debate about how this gap might be filled should, among other things, take account of the underlying rationales of the two bodies of law – the law of occupation and human rights law – that are regularly relied on to fill it.    

IHL applicable to all NIACs and its limits

To be sure, IHL of NIACs does contain a considerable number of rules binding armed groups involved in NIACs that aim to uphold life-saving conditions for conflict-affected persons who do not or no longer participate in hostilities ‘at any time and in any place whatsoever’, i.e. both in territories that are under prolonged control of armed groups and in territories that are affected by the armed activities of such groups, but might not be under their full control (common Art.3 GCI-IV; Arts.4, 7, 8, 14, 17 and 18 APII; rules 55, 56, 87-105, 109-111, 129B and 131 CIHL). No doubt, enhanced compliance with these rules would greatly contribute to meet the humanitarian needs of persons who find themselves living under the influence or control of armed groups.

However, as the report also recognises (pp.53-54), protection gaps remain in situations where territories and persons come under protracted control of armed groups, in particular in regard to matters of governance that are not directly linked to an ongoing NIAC, such as upholding public order; the general administration of justice, of public property, of social security schemes as well as of health and education systems; the collection of taxes; and the protection of the environment. Moreover, there are no rules in IHL of NIACs concerning legislative processes allowing for a continued up-to-date regulation of day-to-day matters by the parties to a NIAC, nor relatedly on the populations’ rights to control such processes through the protection of political participation rights, including rights to vote, to freedom of expression or to assembly and association. This is due to the limited legal framework applicable to such situations. The law of occupation – which regulates such matters in international armed conflicts when territory comes under the control of a foreign state – does not so far apply to NIACs and there remains little agreement that international human rights law binds armed groups.

Read more…

Life in rebel territory: is everything war?

May 20, 2020

Elvina Pothelet is a Ph.D. candidate at the University of Geneva. Her dissertation is entitled “Searching for the ‘nexus’: a proposal to refine the scope of applicability of international humanitarian law and war crimes law”. In the past, she worked notably for the Geneva Academy of International Humanitarian Law and Human Rights, the ICRC and Diakonia.

The title of this post is intentionally provocative and of course the answer is no: not all aspects of life during war revolve around war. In rebel territory, as in state-controlled territory, common criminality persists, traffic accidents occur and people have needs that are unrelated to the conflict. This raises the question of how ordinary life is regulated during armed conflicts, especially in territories administered by armed groups. In particular, does international humanitarian law (IHL) – the branch of international law designed to regulate armed conflicts – apply to these issues and, if so, to what extent? In its latest “Challenges Report”, the ICRC suggests that all interactions between armed groups controlling a territory and the local population are “inherently linked” to the conflict and therefore governed by IHL, when relevant. I am grateful for the opportunity to discuss this aspect of the report.  

Relevance and applicability of IHL

The de facto administration of territories by armed groups (such as Ansar Dine in Timbuktu, Mali in 2012, the NDC-R in the DRC or the Kurdish-led administration in northeastern Syria) does not fall neatly within the current international legal framework. On the one hand, international human rights law (HRL) is relevant but its applicability to armed groups is debated; on the other hand, IHL does not explicitly address the issue: there is no “law of occupation” in non-international armed conflict (NIAC).

This is not to say that IHL is irrelevant to regulating life in these territories; as the ICRC report notes (p. 53), a number of important NIAC rules are relevant. For instance, common article 3 and APII prohibit murder, torture and other forms of ill-treatment (including sexual violence) as well as the passing of sentences without judgment by a regularly constituted court affording judicial guarantees; they impose minimum conditions of detention and an obligation to respect, protect and care for the wounded and sick.

A more delicate issue, however, is when exactly these IHL rules are applicable. It is clear that they are applicable in territories controlled by armed groups parties to a NIAC and are binding on these groups; it is also clear that they protect certain categories of persons: “persons taking no active part in hostilities” (common article 3(1)) and “all persons affected by” the conflict (for APII, per Art. 2). However, these general applicability conditions are insufficient to solve many “micro-applicability” dilemmas, i.e. whether a relevant rule is applicable to specific incidents or persons. Do these rules apply to all acts of ill-treatment occurring on a territory controlled by a party, including corporal punishment as a means of law enforcement (e.g. amputation for theft) and domestic violence? (Whether these acts are prohibited under domestic law or HRL is not at issue here; the question is whether they are prohibited under IHL). Does the IHL obligation of fair trial protect all accused prosecuted by a party to a NIAC, including if their offence is unrelated to the conflict, such as pedophilia? These and other questions suggest that there is a missing piece in IHL’s applicability puzzle.

The nexus requirement

This missing piece is the nexus. The nexus requirement was revealed in war crimes jurisprudence. Since war crimes are violations of IHL, a conduct can qualify as a war crime only if IHL applies to it in the first place. International and domestic courts have established that this requires a showing that the conduct had a link, or nexus, to an armed conflict (the ICC Elements of Crimes require that the conduct took place “in the context of and was associated with” an armed conflict). In my doctoral research dedicated to this notion, I explain why the nexus is indeed a condition for the applicability of most IHL rules – and not just criminalized rules of IHL – and highlight that this requirement takes different shapes (more below).

The nexus requirement is essential to refine our understanding of IHL applicability in territories under rebel control. If IHL applies only to events that have a nexus to a conflict, are ordinary life events occurring in these territories excluded from the scope of IHL? Should we consider instead that all such events are necessarily impacted by the conflict and, therefore, that IHL always applies at least when the armed group interacts with the population? Or is a more nuanced interpretation of the nexus warranted?

The ICRC’s low threshold of nexus

The ICRC’s position lies on one end of the spectrum and favors the broad applicability of IHL. According to the Challenges Report, “the way in which non-State armed groups exercise control over, and interact with, persons living in territory under their de facto control is inherently linked to the conflict in question”. The conflict “plays a substantial part in the group’s ability to control the lives [of the population] and the manner in which such control is exercised” and “[a]s a result, IHL applies and therefore protects persons living in” these territories (p. 53).

I understand this to mean that the nexus requirement is always satisfied in territories controlled by armed groups and that IHL automatically applies, at least as far as interactions between the group and the civilian population are concerned. Hence IHL would apply to all instances of ill-treatment involving the group (including committed as part of “law enforcement”), to all detentions and judicial proceedings, and every time the group (fails to) provide(s) health care in such territories.

It is likely that the format of the report did not allow for a detailed treatment of this question. Nonetheless, I will take the report at face value, for the sake of argument.

The ICRC’s view is certainly attractive from a practical perspective as it minimizes the number of applicability dilemmas (IHL always applies when the group interacts with the population); but there are also counter-arguments. First, one could challenge the factual claim that territorial control by an armed group is always “inherently linked to the conflict in question”. A group’s territorial control may predate the conflict and/or be unrelated to it. Imagine an armed group that took control of a territory in the course of an old conflict which ended with the area being granted autonomy; after years of peace, a fresh conflict breaks out between this group and the central government (or an enemy armed group). The group’s territorial control is not linked to this ongoing conflict and it would be odd to argue that all interactions with the population it has been administering for years are suddenly subject to IHL, even criminal proceedings against drug dealers. A similar reasoning would apply if an armed group operating in a failed State takes control of an area deserted by State authorities without using any armed force, i.e. without triggering an armed conflict: if this group is subsequently engaged in a NIAC – for instance against multinational forces intervening in the country – its territorial control is not “inherently linked” to this subsequent conflict.

Second, the ICRC’s suggestion that IHL governs all detentions and prosecutions in territories controlled by armed groups is hard to reconcile with the terms (and travaux) of Arts. 5 and 6 APII, which apply only to “persons deprived of their liberty for reasons related to the armed conflict” and to “the prosecution and punishment of criminal offences related to the armed conflict”.

Third, it is worth considering what this interpretation means for the principle of equality of belligerents. Clearly, in State-controlled territory, not all interactions between the State and its citizens are governed by IHL. Therefore, the ICRC’s interpretation would mean that, when parties to the conflict are confronted with the same issue (e.g. dealing with common criminals or delivering health care to victims of traffic accidents), only the non-state party would be bound by IHL rules.  

Fourth, the ICRC’s view is based on the famous nexus definition adopted by the ICTY in the Kunarac case (para. 58), which sets an exceedingly low threshold of nexus (see e.g. here, p.  587 and van der Wilt, p. 1125). As I argue in my dissertation, this broad definition is popular amongst courts because it gives them a margin of appreciation regarding which crimes fall within their jurisdiction. However, the Kunarac test also contradicts some well-established aspects of the nexus jurisprudence. In particular, it leads to including purely opportunistic crimes in the realm of war crimes, an outcome widely rejected by courts (e.g. Rutaganda, para. 569) and scholars (e.g. Mettraux, p. 41 or Bothe, p. 388) (including, paradoxically, by those who formally embrace Kunarac, such as the ICTR). In sum, the ‘status’ of the Kunarac definition as the reference nexus definition is questionable.

Alternative views

Contrary to the ICRC, several prominent scholars consider that IHL does not automatically apply to the governance activities of an armed group. In this respect, Katharine Fortin has offered the most elaborated arguments to show that, in rebel territories, life events that have no nexus to the armed conflict are not governed by IHL (see here pp. 172-179). As illustrated by Marco Sassòli, legal proceedings against a cattle thief would thus fall outside the scope of IHL due to a lack of nexus (p. 270). (See also Gilles Giacca, p. 241, and William Schabas, pp. 93-98).

My research supports these views, but also calls for a more precise assessment of the nexus. The reason why general statements such as “all interactions between the armed group and the population have a sufficient nexus to the conflict” raise questions is because the requisite nexus depends on the rule at stake. Contrary to what is often assumed in jurisprudence and doctrine, there is not one but several definitions of the nexus. Different rules apply on the basis of different types and degrees of nexus to the conflict. The applicability of the IHL prohibition of torture depends on a different nexus than rules on the conduct of hostilities. Let us briefly illustrate how a rule-based assessment of the nexus would work, in relation to the administration of rebel territories.

First, it should be reiterated that APII rules apply to individuals who are “affected by” the conflict. One could consider that presence in a territory controlled by an armed group is sufficient. But the first and third counter-arguments highlighted above remain valid (1. a group’s territorial control does not necessarily derive from the conflict; 3. this idea may endanger the equality of belligerents principle). Therefore, I argue that the determining factor is not the fact that an armed group controls the territory but rather a change of ruler during the conflict. Under this more neutral criterion, the population of a territory that came under the control of an armed group in the course of the conflict is indeed affected by the conflict. However, if the territory was already controlled by the group before the start of the conflict (see above scenarios), the population is not automatically affected (the same way that civilians in State-controlled territory are not automatically affected – as the travaux of APII make clear). This population would become affected by the conflict for instance if the other party – State forces – takes control of the area (or of course during the phase of active hostilities).

Second, some rules require a more specific nexus (or, under a different view, the meaning of “affected by the conflict” is adapted to the rule). The clearest examples are Arts. 5 and 6 APII whose applicability is limited to individuals detained for “reasons related to the armed conflict” and prosecuted for “criminal offences related to the armed conflict”, e.g. support to the enemy or war crimes. For rules prohibiting murder and other specific acts (common Art. 3(1), Art. 4 APII), the requisite nexus is between the regulated act and the conflict, e.g. they apply to all conflict-related murders. This means notably that even individuals who are not yet “affected by” the conflict by virtue of their presence in a specific territory (see previous paragraph) are protected under IHL from murder and other prohibited acts that are connected to the conflict. I suggest that the threshold for this nexus (between the act and the conflict) arguably varies depending on the protagonists (act committed by a belligerent / by a civilian / intra-party violence) but it is, in any case, a low threshold. For instance, the fact that the act serves the armed group’s military goals (see discussion here, p. 179) is not, in my view, a condition to satisfy the nexus test.  

These reflections are only meant to stimulate debate on the scope of applicability of IHL in rebel-controlled territories. In this debate, the ICRC’s Challenges Report is an important contribution and I would like to thank the organizers for the opportunity to engage with it.