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Online Book Launch: Towards a Regime of Responsibility of Armed Groups in International Law

September 25, 2020

Dr. Laura Íñigo Álvarez is a researcher and lecturer in public international law. She holds a PhD in international law from Utrecht University and an LLM from the University of Seville. Previously, she was a junior researcher of the EU Project FRAME and coordinator of the EMA Master’s Programme in Human Rights and Democratisation at the University of Seville. She is also a regular contributor to Oxford Reports on International Law in Domestic Courts. Her primary research interests are armed non-state actors, international humanitarian law, international criminal law and business and human rights.

On 29 September 2020, Alma – the Association for the Promotion of International Humanitarian Law will hold the online launch of the book Towards a Regime of Responsibility of Armed Groups in International Law (Intersentia 2020). The event will be introduced by Ido Rosenzweig, Alma’s Chairman and Director of research at the Minerva Center for the Rule of Law Under Extreme Conditions, and will be followed by the presentations of Dr. Laura Íñigo Álvarez, author of the book, Dr. Katharine Fortin, Assistant Professor at Utrecht University, Ezequiel Heffes, Thematic Legal Adviser at Geneva Call, and Prof. Dr. Emanuela-Chiara Gillard, Senior Research Fellow at the Oxford Institute for Ethics, Law and Armed Conflict.

The book explores the question of whether armed groups could be held internationally responsible as a collectivity and which methodology could be applied to answer this question. The issue of holding armed groups internationally responsible was already pointed out by the first version of the Draft Articles on Responsibility of States for Internationally Wrongful Acts in 1997 in former article 14 which acknowledged the possibility of attributing the conduct of an organ of an insurrectional movement to that movement, although this article was later deleted in the final version. In addition, the International Committee of the Red Cross (ICRC) in its study on Customary International Humanitarian Law also mentions that armed groups ‘incur responsibility for acts committed by persons forming part of such groups’. The book takes these premises as a starting point in order to further elaborate on a possible framework of international responsibility for armed groups. Among other elements, the book looks at how acts of formal or de facto members of an armed group can be attributed to the group itself or whether the armed group is under an obligation to provide reparations to victims.

In the upcoming weeks, this blog will host a mini-symposium with the panellists taking part in the book launch.

The event will take place via zoom at 19:00 CEST (13:00 EST, 20:00 Israel Time). More information and the registration link can be found here.

News Roundup 14 September – 20 September

September 23, 2020
  1. Rakhine: Where the military is more feared than the coronavirus
  2. Mali opposition rejects military-backed transition charter
  3. Afghan peace talk negotiators hold first direct session in Doha
  4. Yemen: Aid Obstruction Puts Millions at Risk
  5. Former commanders of Colombia’s demobilized FARC rebels apologise for kidnappings
  6. Syria: Bombshell report reveals ‘no clean hands’ as horrific rights violations continue
  7. Sudan’s revolution runs aground in Darfur
  8. 70 armed groups agree to end hostilities in DR Congo
  9. UN urges Turkey to investigate possible war crimes in north Syria
  10. As attacks surge in northern Mozambique, families flee multiple times

News Roundup 7 September – 13 September

September 16, 2020
  1. Attacks on Students, Teachers, and Schools Surge in Africa’s Sahel
  2. Attacks on Education Rising, Fomenting Child Recruitment into Armed Groups, Secretary-General Warns in Inaugural Observance of International Day
  3. As Colombia’s FARC leaders testify, abuse survivors see little hope for justice
  4. The autonomous military groups in Libya
  5. Will Sudan’s Peace Deal With Rebels Work?
  6. How Colombia’s armed groups are exploiting COVID-19 to recruit children
  7. Fresh war crimes fears highlighted in new Yemen report
  8. Libya: Armed Groups Violently Quell Protests
  9. Historic peace deal signed between Sudan’s new government and rebel groups
  10. Army operations in Sinai continue unabated

Events:

Web event: The crossroad of competition: Countering the rise of violent extremists and revisionist powers in Africa, a conversation with commander of US Special Operations Command Africa, Major General Dagvin Anderson, Wednesday, September 9, 2020

Web event: Jihadism at a crossroads, Friday, September 11, 2020

Legal Roundup January – August 2020

September 14, 2020

We are very pleased to present the legal roundup for January – August 2020, that contains publications on issues related armed groups and international law, non-international armed conflict and the relationship between IHL and IHRL. It was prepared by Andrea Farrés, and it was finalised with input from Ezequiel Heffes and Katharine Fortin.

If you have a 2020 publication which you think should be included in this roundup, please do not hesitate to contact the editors of the blog, Katharine Fortin and Ezequiel Heffes.

Please note that due to paywalls and your institution’s permissions, the given link may not always take you to the text of the article. The Armed Groups and International law blog has published legal roundups since 2012. For previous versions of the legal roundup, see here.

Armed Non-State Actors and IHL/IHRL

Aksamitowska, Karolina, Traditional Approaches to the Law of Armed Conflict: Disseminating IHL through the Receptor Approach, Journal of International Humanitarian Legal Studies, Volume 11, Issue 1, Pages 5-35.

Cotter, Cédric, Policinski, Ellen, A History of Violence: The Development of International Humanitarian Law Reflected in the International Review of the Red Cross, Journal of International Humanitarian Legal Studies, Volume 11, Issue 1, Pages 36-67.

Modirzadeh, Naz K. Cut These Words: Passion and International Law of War Scholarship, Volume 61, Issue 1, Winter 2020

Robson, Verity, The Common Approach to Article 1: The Scope of Each State’s Obligation to Ensure Respect for the Geneva Conventions, Journal of Conflict and Security Law, Volume 25, Issue 1, Spring 2020, Pages 101–115.

Smith, Tara, A Framework Convention for the Protection of the Environment in Times of Armed Conflict: A New Direction for the International Law Commission’s Draft Principles?, Journal of International Humanitarian Legal Studies, Volume 11, Issue 1, Pages 148-162.

Sosnowski, Marika, ‘Not dead but sleeping’: Expanding international law to better regulate the diverse effects of ceasefire agreements, Leiden Journal of International Law, Volume 33, Issue 3, September 2020, Pages 731-743.

Stevoli, Margherita, Famine as a Collateral Damage of War, Journal of International Humanitarian Legal Studies, Volume 11, Issue 1, Pages 163-186.

Sutton, Rebecca, Enacting the ‘civilian plus’: International humanitarian actors and the conceptualization of distinction, Leiden Journal of International Law, Volume 33, Issue 2, June 2020, Pages 429-449.

Talbot Jensen, Eric, The (Erroneous) Requirement for Human Judgment (and Error) in the Law of Armed Conflict, International Law Studies, Volume 96, Pages 26-57.

Vanhullebusch, Matthias, The War on Terror on the Silk Road: Changing Discourses, The Asian Yearbook of Human Rights and Humanitarian Law, Volume 4, Pages: 285–309.

Non-International Armed Conflicts (General)

Bongard, Pascal, Heffes, Ezequiel, Engaging armed non-State actors on the prohibition of recruiting and using children in hostilities: Some reflections from Geneva Call’s experience, International Review of the Red Cross (2019), 101(911), pages 603-621.

Grace, Rob, Humanitarian Negotiation with Parties to Armed Conflict The Role of Laws and Principles in the Discourse, Journal of International Humanitarian Legal Studies, Volume 11, Issue 1, pages 68-96.

International Review of the Red Cross (2020). Testimonies of former child soldiers in the Democratic Republic of the Congo, International Review of the Red Cross, 101(911), pages 445-457.

Íñigo Álvarez, Laura, Towards a regime of responsibility of armed groups in international law, doctoral thesis, 2019, University of Sevilla, Sevilla.

Jackson, Ashley, Weigand, Florian, Rebel rule of law. Taliban courts in the west and north-west of Afghanistan, ODI and HPG, Briefing note, May 2020.

Jo, Hyeran, International Humanitarian Law on the Periphery Case of Non-state Armed Actors, Journal of International Humanitarian Legal Studies, Volume 11, Issue 1, pages 97-115.

Maganza, Bianca, From Peacekeepers to Parties to the Conflict: An IHL’s Appraisal of the Role of UN Peace Operations in NIACs, Journal of Conflict and Security Law, Volume 25, Issue 2, July 2020, Pages 209–236.

Manekin, Devorah, Wood, Reed M., Framing the Narrative: Female Fighters, External Audience Attitudes, and Transnational Support for Armed Rebellions, Journal of Conflict Resolution, Volume 64, Issue 9, October 2020, Pages 1638–1665.

Mironova, Vera, Alhamad, Karam, Whitt, Sam, Rebel Group Attrition and Reversion to Violence: Micro-Level Evidence from Syria, International Studies Quarterly, Volume 64, Issue 2, June 2020, Pages 285–294.

Müller, Amrei, Can Armed Non-state Actors Exercise Jurisdiction and Thus Become Human Rights Duty-bearers?, Human Rights Law Review, Volume 20, Issue 2, June 2020, Pages 269–305.

Spadaro, Alessandra, Punish and Be Punished? The Paradox of Command Responsibility in Armed Groups, Journal of International Criminal Justice, Volume 18, Issue 1, March 2020, Pages 1–30.

Szekely, Ora, Fighting about Women: Ideologies of Gender in the Syrian Civil War, Journal of Global Security Studies, Volume 5, Issue 3, July 2020, Pages 408–426.

Ulrich Nagel, Rober, Doctor, Austin C., Conflict-related Sexual Violence and Rebel Group Fragmentation, Journal of Conflict Resolution, Volume 64, Number 7-8, August-September 2020, Pages 1226-1253.

Vanhullebusch, Matthias, Do Non-State Armed Groups Have a Legal Right to Consent to Offers of International Humanitarian Relief?, Journal of Conflict and Security Law, Volume 25, Issue 2, July 2020, Pages 317–341.

Wimmer, Andreas, Miner, Chris, The Strategic Logic of Ethnoterritorial Competition: Violence against Civilians in Africa’s Civil Wars, Journal of Global Security Studies, Volume 5, Issue 3, July 2020, Pages 389–407.

Rebel governance

Breslawski, Jori, The Social Terrain of Rebel Held Territory, Journal of Conflict Resolution, August 2020, pages 1-27.

Cunningham, Kathleen Gallagher, Loyle, Cyanne E., Introduction to the Special Feature on Dynamic Processes of Rebel Governance, Journal of Conflict Resolution, August 2020, pages 1-12.

Elko McKibben, Heather, Skoll, Amy, Please Help Us (or Don’t): External Interventions and Negotiated Settlements in Civil Conflicts, Journal of Conflict Resolution, August 2020, pages 1-26.

Hampton, Kathryn, Born in the twilight zone: Birth registration in insurgent areas, International Review of the Red Cross, 101(911), pages 507-536.

Loyle, Cyanne E., Rebel Justice during Armed Conflict, Journal of Conflict Resolution, August 2020, pages 1-27.

Mampilly, Zachariah, Stewart, Megan A., A Typology of Rebel Political Institutional Arrangements, Journal of Conflict Resolution, August 2020, pages 1-31.

Rubin, Michael A., Rebel Territorial Control and Civilian Collective Action in Civil War: Evidence from the Communist Insurgency in the Philippines, Journal of Conflict Resolution, Volume 64, Issue 2-3, 2020, pages 459-489.

Jus ad Bellum

Badalic, Vasja, The war against vague threats: The redefinitions of imminent threat and anticipatory use of force, Security Dialogue, 2020.

Shah, Niaz A., The ‘Unwilling’ and ‘Unable’ Test in International Law: The Use of Force against Non-State Actors in Pakistan and Afghanistan, The Asian Yearbook of Human Rights and Humanitarian Law, Volume 4, Pages: 109–138.

Van Dine, Alexandra (2020) When is Cyber Defense a Crime? Evaluating Active Cyber Defense Measures Under the Budapest Convention, Chicago Journal of International Law, Volume 20, Number 2, pages 530-564.

International Criminal Law

Alkhawaja, Osama, In Defense of the Special Tribunal for Lebanon and the Case for International Corporate Accountability, Chicago Journal of International Law, Volume 20, No. 2, pages 450-485.

Braga da Silva, Rafael, Sherlock at the ICC? Regulating Third-Party Investigations of International Crimes in the Rome Statute Legal Framework, Journal of International Criminal Justice, Volume 18, Issue 1, March 2020, Pages 59–86.

Chlevickaitė, Gabrielė, Holá, Barbora, Bijleveld, Catrien, Judicial Witness Assessments at the ICTY, ICTR and ICC: Is There ‘Standard Practice’ in International Criminal Justice?, Journal of International Criminal Justice, Volume 18, Issue 1, March 2020, Pages 185–210.

Huang, Deming, Shan, Qintong, Article Navigation The Immunity of Judge Akay of the MICT, Chinese Journal of International Law, Volume 19, Issue 1, March 2020, Pages 137–155.

Kamber, Krešimir, Substantive and Procedural Criminal Law Protection of Human Rights in the Law of the European Convention on Human Rights, Human Rights Law Review, Volume 20, Issue 1, March 2020, Pages 75–100.

Kotecha, Birju, The International Criminal Court’s Selectivity and Procedural Justice, Journal of International Criminal Justice, Volume 18, Issue 1, March 2020, Pages 107–139.

Palmer, Nicola, International criminal law and border control: The expressive role of the deportation and extradition of genocide suspects to Rwanda, Leiden Journal of International Law, Volume 33, Issue 3, September 2020, Pages 789-807.

Rubin, Maxine, Politicized Justice: Africa and the International Criminal Court, International Journal of Transitional Justice, Volume 14, Issue 2, July 2020, Pages 401–411.

SáCouto, Susana, Nadya Sadat, Leila, Viseur Sellers, Patricia, Collective criminality and sexual violence: Fixing a failed approach, Leiden Journal of International Law, Volume 33, Issue 1, March 2020, Pages 207-241.

Sudduth, Jun Koga, Who Punishes the Leader? Leader Culpability and Coups during Civil War, Journal of Conflict Resolution, August 2020, pages 1-26.

Thuy Seelinger, Kim, Close to Home: A Short History, and Rough Typology, of National Courts Prosecuting Wartime Sexual Violence, Journal of International Criminal Justice, Volume 18, Issue 2, May 2020, Pages 219–242.

Trahan, Jennifer, Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes, Cambridge University Press, 2020.

Targeting and Detention

Cederman, Lars-Erik, Hug, Simon, Schubiger, Livia I., Villamil, Francisco, Civilian Victimization and Ethnic Civil War, Journal of Conflict Resolution, Volume 64, Number 7-8, August-September 2020, Pages 1199-1225.

Corn, Geoffrey S., Beyond Human Shielding: Civilian Risk Exploitation and Indirect Civilian Targeting, International Law Studies, Volume 96, Pages 118-158.

Galvis Martínez, Manuel, Betrayal in War: Rules and Trends on Seeking Collaboration under IHL, Journal of Conflict and Security Law, Volume 25, Issue 1, Spring 2020, Pages 81–99.

Lubell, Noan, Cohen, Amichai, Strategic Proportionality: Limitations on the Use of Force in Modern Armed Conflicts, International Law Studies, Volume 96, Pages 160-195.

Marchant, Emma J., Insufficient Knowledge in Kunduz: The Precautionary Principle and International Humanitarian Law, Journal of Conflict and Security Law, Volume 25, Issue 1, Spring 2020, Pages 53–79.

Shany, Yuval, Schmitt, Michael N, An International Attribution Mechanism for Hostile Cyber Operations, International Law Studies, Volume 96, Pages 196-222.

Tanaka, Yoshifumi, Release of a Detained Warship and Its Crew through Provisional Measures: A Comparative Analysis of the ARA Libertad and Ukraine v. Russia Cases, International Law Studies, Volume 96, Pages 223-256.

Winter, Elliot, Pillars not Principles: The Status of Humanity and Military Necessity in the Law of Armed Conflict, Journal of Conflict and Security Law, Volume 25, Issue 1, Spring 2020, Pages 1–31.

Weapons

Kalpouzos, Ioannis, Double elevation: Autonomous weapons and the search for an irreducible law of war, Leiden Journal of International Law, Volume 33, Issue 2, June 2020, Pages 289-312.

Mauri, Diego, The Holy See’s Position on Lethal Autonomous Weapons Systems An Appraisal through the Lens of the Martens Clause, Journal of International Humanitarian Legal Studies, Volume 11, Issue 1, Pages 116-147.

Nasu, Hitoshi, Letts, David, The Legal Characterization of Lethal Autonomous Maritime Systems: Warship, Torpedo, or Naval Mine?, International Law Studies, Volume 96, Pages 79-97.

Oswald, Christian, Weber, Sigrid, Williams, Rob, Under the Roof of Rebels: Civilian Targeting After Territorial Takeover in Sierra Leone, International Studies Quarterly, Volume 64, Issue 2, June 2020, Pages 295–305.

Transitional Justice and Peacebuilding

Adomi Leshem, Oded, Halperin, Eran, Hoping for Peace during Protracted Conflict: Citizens’ Hope Is Based on Inaccurate Appraisals of Their Adversary’s Hope for Peace, Journal of Conflict Resolution, Volume 64, Number 7-8, August-September 2020, Pages 1390-1417.

Aksenova, Marina, N. Rieff, Amber, Setting the scene: The use of art to promote reconciliation in international criminal justice, Leiden Journal of International Law, Volume 33, Issue 2, June 2020, Pages 495-516.

Berg, Louis-Alexandre, Civil–Military Relations and Civil War Recurrence: Security Forces in Postwar Politics, Journal of Conflict Resolution, Volume 64, Number 7-8, August-September 2020, Pages 1307-1334.

Carolan, Gene, Transition Without Transformation: The Legacy of Sudan’s Comprehensive Peace Agreement, International Journal of Transitional Justice, Volume 14, Issue 2, July 2020, Pages 340–359.

Cil, Deniz, Prorok, Alyssa K, Selling Out or Standing Firm? Explaining the Design of Civil War Peace Agreements, International Studies Quarterly, Volume 64, Issue 2, June 2020, Pages 329–342.

Cohen, Cynthia E., Reimagining Transitional Justice, International Journal of Transitional Justice, Volume 14, Issue 1, March 2020, Pages 1–13.

Daniels, Lesley-Ann, How and When Amnesty during Conflict Affects Conflict Termination, Journal of Conflict Resolution, Volume 64, Issue 9, October 2020, Pages 1612–1637.

Dirnstorfer, Anne, Bahadur Saud, Nar, A Stage for the Unknown? Reconciling Postwar Communities through Theatre-Facilitated Dialogue, International Journal of Transitional Justice, Volume 14, Issue 1, March 2020, Pages 122–141.

Elayah, Moosa, van Kempen, Luuk, Schulpen, Lau, Adding to the Controversy? Civil Society’s Evaluation of the National Conference Dialogue in Yemen, Journal of Intervention and Statebuilding, Volume 14, Issue 3, Pages 431-458.

Engel, Ulf, Peace-building Through Space-making: The Spatializing Effects of the African Union’s Peace and Security Policies, Journal of Intervention and Statebuilding, Volume 14, Issue 2, Pages 221-236.

Fairey, Tiffany, Kerr, Rachel, What Works? Creative Approaches to Transitional Justice in Bosnia and Herzegovina, International Journal of Transitional Justice, Volume 14, Issue 1, March 2020, Pages 142–164.

Greeley, Robin Adèle, Orwicz, Michael R, Falconi, José Luis, Reyes, Ana María, Rosenberg, Fernando J., Repairing Symbolic Reparations: Assessing the Effectiveness of Memorialization in the Inter-American System of Human Rights, International Journal of Transitional Justice, Volume 14, Issue 1, March 2020, Pages 165–192.

Greiff, Pablo de, The Future of the Past: Reflections on the Present State and Prospects of Transitional Justice, International Journal of Transitional Justice, Volume 14, Issue 2, July 2020, Pages 251–259.

Guerrero, Freddy A, Aristizabal, Liza López, Images and Memory: Religiosity and Sacrifice – The Cases of Tierralta, Trujillo and Arenillo in Colombia, International Journal of Transitional Justice, Volume 14, Issue 1, March 2020, Pages 35–55.

Hirblinger, Andreas T., Landau, Dana M., Daring to differ? Strategies of inclusion in peacemaking, Security Dialogue, 2020.

Jochem, Torsten, Murtazashvili, Ilia, Murtazashvili, Jennifer, Can the Design of Electoral Institutions Improve Perceptions of Democracy in Fragile States? Evidence from Afghanistan, Journal of Global Security Studies, Volume 5, Issue 3, July 2020, Pages 443–462.

Krakowski, Krzystof, Pulled Together or Torn Asunder? Community Cohesion After Symmetric and Asymmetric Civil War, Journal of Conflict Resolution, Volume 64, issue 7-8, 2020, pages 1470-1498.

Ladisch, Virginie, Yakinthou, Christalla, Cultivated Collaboration in Transitional Justice Practice and Research: Reflections on Tunisia’s Voices of Memory Project, International Journal of Transitional Justice, Volume 14, Issue 1, March 2020, Pages 80–101.

Lee, SungYong, Local Resilience and the Reconstruction of Social Institutions: Recovery, Maintenance and Transformation of Buddhist Sangha in Post-Khmer Rouge Cambodia, Journal of Intervention and Statebuilding, Volume 14, Issue 3, Pages 349-367.

Lerner Febres, Salomón, Memory of Violence and Drama in Peru: The Experience of the Truth Commission and Grupo Cultural Yuyachkani – Violence and Dehumanization, International Journal of Transitional Justice, Volume 14, Issue 1, March 2020, Pages 232–241.

Menzel, Anne, The pressures of getting it right: Expertise and victims’ voices in the work of the Sierra Leone Truth and Reconciliation Commission (TRC), International Journal of Transitional Justice, Volume 14, Issue 2, July 2020, Pages 300–319.

Moser, Carolyn: Accountability in EU Security and Defence—The Law and Practice of Peacebuilding. Oxford University Press, Oxford, 2020.

Natalya Clark, Janine, Emotional Legacies, Transitional Justice and Alethic Truth: A Novel Basis for Exploring Reconciliation, Journal of International Criminal Justice, Volume 18, Issue 1, March 2020, Pages 141–165.

Perez-Leon-Acevedo, Juan Pablo, The control of the Inter-American Court of Human Rights over amnesty laws and other exemption measures: Legitimacy assessment, Leiden Journal of International Law, Volume 33, Issue 3, September 2020, Pages 667-687.

Ramírez-Barat, Clara, The Path to Social Reconstruction: Between Culture and Transitional Justice, International Journal of Transitional Justice, Volume 14, Issue 1, March 2020, Pages 242–250.

Renshaw, Catherine, Poetry, Irrevocable Time and Myanmar’s Political Transition, International Journal of Transitional Justice, Volume 14, Issue 1, March 2020, Pages 14–34.

Rolston, Bill, Ambushed by Memory: Post-Conflict Popular Memorialisation in Northern Ireland, International Journal of Transitional Justice, Volume 14, Issue 2, July 2020, Pages 320–339.

Sebastián Eskauriatza, Javier, The jus post bellum as ‘integrity’ – Transitional criminal justice, the ICC, and the Colombian amnesty law, Leiden Journal of International Law, Volume 33, Issue 1, March 2020, Pages 189-205.

Reports

Annual Report 2019 (2020), ICRC.

Breaking the Cycle of Violence: Transitional Justice for the Victims of ISIS in Syria (2020), Chatham House.

Children and War (2020), International Review of the Red Cross.

The Development of Libyan Armed Groups Since 2014: Community Dynamics and Economic Interests (2020), Chatham House.

International Expert Meeting Report: The Principle of Proportionality (2020), ICRC.

The People on War report: ICRC Worldwide Consultation on the Rules of War (2020), ICRC.

Seventy Years of the Geneva Conventions: What of the Future? (2020), Chatham House.

World Report (2020), Human Rights Watch.

News Roundup 31 August – 6 September

September 9, 2020
  1. Afghanistan frees nearly 200 Taliban prisoners to push peace talks
  2. Sudan rebels agree key peace deal to end 17-year conflict: Report
  3. Sudan signs peace deal with key rebel groups, some hold out
  4. All eyes on Sudan’s peace deal with armed groups
  5. Saudi Arabia Welcomes Peace Deal between Sudan Govt., Armed Groups
  6. Sudan: Darfur deal welcomed by UN chief as ‘historic achievement’
  7. Counterterrorism Assistance to Chad for the Sahel: The Price the People Pay
  8. Sudan’s peace deal, Myanmar’s COVID surge, and Macron’s Lebanon mission: The Cheat Sheet
  9. ‘Deep reforms must to end vicious Myanmar violence’
  10. Ten Militants and Five Civilians Killed in East Congo Violence: Army, Local Leader

Public Talk: Cross-border humanitarian operations into Syria – legal and operational aspects

September 9, 2020

On 28 July 2020, Diakonia Lebanon Resource Desk for International Humanitarian Law hosted an online expert panel talk: Cross-border relief operations into Syria – legal and operational aspects. This was the first public expert debate to address cross-border and cross-line humanitarian action in Syria since 2012 with a view to contributing to the international humanitarian community’s informed decision-making and operational policies that comply with international legal standards, while honouring the imperative to help millions of Syrian civilians to remain alive and in dignity.

Speakers: Professor Michael Bothe Professor of Public Law, Goethe University Frankfurt; Ms. Misty Buswell Regional Policy, Advocacy and Communication Director, International Rescue Committee; Ms. Emanuela-Chiara Gillard Senior Research Fellow, Oxford Institute for Ethics, Law and Armed Conflict; Ms. Rachel Sider Policy and Advocacy Advisor, Norwegian Refugee Council. Moderator: Dr. Jelena Plamenac Manager of Lebanon Resource Desk for IHL, Diakonia.

Worshipping and destruction of the Timbuktu Tombs: Islamic Law and IHL have something to share – Part II

September 7, 2020

Having reviewed the facts, the actors and their religious affiliations, and the principles in Islamic Law relevant to understanding their motivations in the first part of this post, this second part analyzes the attack to the Timbuktu tombs under IHL and Islamic Law of Armed Conflict (ILAC) to determine its lawfulness in both legal frameworks.

Analysis of the attack under IHL:

To analyze the attack under IHL this post will first qualify the conflict in Timbuktu, and then within that framework, it will analyze the protection of cultural heritage.

The qualification of the conflict under IHL

IHL recognizes two types of armed conflict: international and non-international. The key distinctions between them are the parties involved in the conflict. If the parties are two or more States, it will be an international conflict, whereas if one of the parties is a non-State actor, it will be a non-international armed conflict (NIAC). Nevertheless, not every situation of internal armed violence amounts to a NIAC. According to the Tadic decision, there are two constituting core elements for a NIAC, a) protracted armed violence, which entails a certain intensity of the armed violence, and b) the armed non-state actors exhibit a certain degree of organization.

In the case of Timbuktu, there was a confrontation between a coalition of armed groups (consisting of AQIM, Ansar Dine, and MNLA) and the Mali armed forces, hence it was a NIAC. Additionally, the control of AQIM and Ansar Dine over the territory of Timbuktu is proof of the intensity of violence, and the establishment of institutions, including the Hisbah shows the organization of the two groups involved in the attack. Consequently, on the basis that Mali had ratified Additional Protocol II, the legal framework applicable encompasses Common Article 3 of the Geneva Conventions, Additional Protocol II (AP II), and the Customary Rules of IHL.

The protection of cultural heritage in IHL

IHL protects cultural heritage in NIACs. Article 16 of AP II, prohibits any act of hostility directed against inter alia historical monuments, and places of worship which constitute “cultural or spiritual heritage of peoples”. According to the diplomatic conference, this text refers to cultural property of importance of every nation  (humankind). This prohibition is an absolute one and does not admit a waiver in case of military necessity.

In contrast,  Article I of the Hague Convention for the protection of cultural property in armed conflict, defines and protects cultural property  which forms part of the cultural heritage of “every people”.  On the basis of this slightly different wording, it can be seen that the protection of the Second Protocol to the Hague Convention (which understands cultural property as defined in the convention) has a narrower scope of protection than the one of Article 16 APII because the type of protected property is not heritage of the whole humankind. Unlike the protections in Additional Protocol II, Article 6 of the Second Protocol also admits a waiver that allows acts of hostility against cultural property or military use of cultural property in case of military necessity (see here for discussion).

The tombs attacked by Al Mahdi were not only places of worship but also cultural heritage of the community. Nine out of the ten sites had the status of World Heritage by UNESCO (Para.39). Thus, it is unquestionable that they were cultural heritage of peoples under Additional Protocol II and enjoyed absolute protection.

It is important to highlight that while the Sheikh Mohamed Mahmoud Al Arawani Mausoleum did not enjoy the UNESCO status, the AP II does not demand a building to have this status to enjoy this protection. Furthermore, even if this mausoleum was considered to fall within the scope of the Hague Convention as “cultural heritage of every people” and be subjected to a waiver on the basis of imperative military necessity, Article 6 of the Second Protocol of the Hague Convention only admits invoking it when the cultural property has, by its function, been made into a military objective or there is no feasible alternative available to obtain a similar military advantage. The mausoleum in question had none of the aforementioned functions and served only a religious purpose. Hence, it was protected under both treaties, the Hague Convention and AP II, and AQIM and Ansar Dine violated IHL rules in the attack that destroyed ten cultural sites that were the heritage of humankind.

Analysis of the attack under Islamic Law

Before moving to the analysis under ILAC, it is necessary to acknowledge that Islamic Law is a complex field of law. There are various sources of law and there is no codification of it. It does not come from legal positivism or natural law. Thus, the following analysis of the attack of the Timbuktu tombs under Islamic law is conducted in the framework of this unique system of law and should not be understood from the western paradigm of international law. In this line, the attack will be analyzed from the perspective of the lawfulness of the use of armed force of an Islamic state with other non-Islamic territories, and then, within an Islamic state.

The determination of the relation between AQIM and Ansar Dine and the territory of Timbuktu 

Firstly, to determine whether the use of armed force was lawful or not under ILAC, it is necessary to establish the way in which AQIM and Ansar Dine related to Timbuktu. Islamic law has developed a particular way in which Islamic territories relate to other territories. These relations respond to a classical paradigm that divides the world into three. Although modern Muslim scholars almost unanimously agree that this division has no basis in the Qur’an or the Sunnah, it is relevant for the analysis because extremist groups widely use it (at 104-105).

The three divisions are dār al-Islām (house of Islam), dār al-ḥarb (house of war), and dār- al-ṣulḥ  (house of peace). These notions will be simplified in this post for space constraints.

House of Islam can be interpreted in three different ways: as a territory where (1) Islam and Islamic law is practiced, (2) as a territory ruled by Muslims, (3) or as a territory where Muslims and dhimmis (permanent non-Muslim citizens of an Islamic state) enjoy freedom to practice their religions. The house of war is understood in opposition to the three above-mentioned interpretation of the house of Islam. It can be (1) any part of the world where Muslims cannot live and practice their faith, (2) a territory that it is not ruled by Muslims, or (3) where Muslims and dhimmis cannot practice their faiths peacefully. Although the issue is much more complicated, if any of the three described situations in the house of war occurs, then Muslims following this typology believe that they can resort to the use of armed force against those who control the territory. Finally, the house of peace refers to territories that are non-Muslim but have entered into peace agreements or non-aggression pact with an Islamic state.

Accordingly, under this framework, at the moment of the attack to the tombs, Timbuktu was clearly Dār al-Islām (i.e. house of Islam), because it was governed by Islamic authorities, enforcing Islamic law and ruled by Shar’iah law. Additionally, the population professed and practiced Islam. Therefore, the use of armed force was not justified from the classic paradigm of international Islamic relations.

Situations in which is possible to use armed force within the house of Islam

Although Timbuktu was house of Islam at the moment of the attack, it is still possible under ILAC to use armed force in the house of Islam against certain groups that also use armed force. Such situations are comparable to NIAC, and they occur when the Muslim forces fight against al-murtaddún (apostates), al-bugháh (armed rebels, separatists), al-Khawárij (violent religious fanatics), and al-muḥáribún (highway robbers, bandits, pirates, terrorists). (p. 122).

The fight against al-murtaddún refers exclusively to the specific incidents of groups apostatizing from Islam following the death of Prophet Muhammad, and it is not used as a category after that. The fight against al-bugháh, accordingtothe scriptural sources, refers to the fight between armed rebels or secessionists and the State. These groups must have military power and organization (Shawkah man’ah, fayʼah), a complaint about an injustice inflicted by government or a violation of the Shar’iah, and they must use armed force (khurúj).The Khawárij have as distinct characteristics that they are pious worshippers with a very narrow understanding of Islam and the Qur’an, they target indiscriminately Muslim civilians, seize the property of their victims, and they hold that those who commit a major sin as kuffár (unbelievers).Finally, the al-muáribún are armed robbers or bandits. Their motives are lucrative or spreading the terror among their victims. They use armed force but do not have a religious foundation nor claim to have a just cause for their actions.

The transference of these categories to the qualification of the attack of the Timbuktu monuments requires to bear in mind that Ansar Dine and AQIM had the role of the government, with institutions as the Hisbah that ensure the enforcement of Shar’iah law. Therefore, it is not necessary to assess in which of these categories Ansar Dine and AQIM fall into but to assess whether their attack to the tombs was a response to any group that belongs to these categories.

As explained before, the mausoleums were places of worship and prayers for Sufi Muslims, who never used armed force. Hence there is no foundation in ILAC that enabled the attack, and that is probably the reason why Al Mahdi initially advised against it. 

Is ziyara absolutely forbidden in Islamic law?

As a final point in the determination of the lawfulness of the attack under Islamic Law, it is necessary to review whether the practice of ziyara (visitation of mausoleums) is prohibited in Islamic law, and thus enabled the destruction of the shrines. Ziyara is controversial amongst the Muslims, the Shi’ite must go on pilgrimages to visit the graves of Ali ibn Abi Talib (600 – c.661) and of Husayn ibn Ali (624-680), and the Wahhabis reject and denounce the veneration of saints. The divergence of this practice is founded in the lack of Qur’anic sources and the ambiguous hadiths which intermittently condemn and advocate for visitation of graves and do not offer a clear-cut opinion in the matter.

None of the verses of the Qur’an prescribe the destruction of idols. Although verses 21:56-57 describe the breaking of idols by Abraham to guide his people to the oneness of God (tawhid), they do not command or condemn such behavior. As for the Prophet, he first forbade the practice of ziyara, but once the principle of tawhid was solidly established, he encouraged ziyara as a reminder of death and the Afterlife, becoming permissible (mubah) and recommended (mustahab). Following this interpretation, veneration of saints at their tombs was a prevalent phenomenon throughout the middle east for many centuries, especially during the twelfth and thirteenth centuries pilgrimage sites proliferated.

On the other hand, justifications for tombs destruction in the Islamic scholarship are traced to Ibn Taymiyya (1263-1328), a Syrian jurist who condemned the practice of Ziyara and issued a fatwa (non-binding legal opinion)stating that visitation of graves amounted to innovation (bid’a), and challenging the hadiths that encouraged them. Abd al-Wahhab (1703-1792) was influenced by Ibn Taymiyya, and founded the Wahhabism, a doctrine that calls for a return to the practice of the earliest generations of Islam (salaf al-salih), and that entails the destruction of all shrines and tombs for embodying polytheism.

Consequently, there is no definite answer on the prohibition of ziyara in the legal framework of Islam because it is contradictory. Depending on the doctrine a group decides to follow, there will be foundation for protecting as well as for destroying the shrines, which proves the complexity of Islamic Law, and the difficulty for making categorical statements.

In the case of the Timbuktu mausoleums, AQIM and Ansar Dine, as Salafist groups, adopted the Wahhabi approach, which resulted in the destruction of the tombs that cannot only be condemned by Islam but also by IHL and the rest of the world who lost part of the history of humanity. Likewise, although Al Mahdi initially advised against their destruction, he did not base his opinion on Islamic law; on the contrary, he held that all Islamic jurists agreed on the prohibition of the construction of mausoleums, omitting to inform about the ambiguity in the matter and using Islamic law to his convenience. This ambiguity should have played in favor of the protection, given that other corpus juris, besides Islamic law, also protected the Tombs

Final Remarks

This analysis proves that IHL and Islamic Law are not very different bodies of law when it comes to the use of armed force. Radical groups purposely follow certain doctrines that find contradiction in Islam, and use the lack of knowledge on Islamic law to justify crimes that have no clear legal foundation in Islam. The attack on ten cultural sites in Timbuktu conducted by AQIM and Ansar Dine under the leadership of Al Mahdi proves so, and it is necessary that the analysis of attacks where Islamic Law was invoked as a source of justification, start to actually resort to Islamic Law to gain legitimacy, especially in the ICC, where this conflict will be touched upon once again in the recently started trial of Al-Hassan.

Source: cnn.com

Worshipping and destruction of the Timbuktu Tombs: Islamic Law and IHL have something to share

September 4, 2020

Andrea Trigoso is a Peruvian qualified lawyer. She holds an LLM in International Crime and Justice by UNICRI and is currently pursuing a MAS in Transitional Justice, Human Rights and Rule of Law at the Geneva Academy.  She has previous experience in International Criminal Law in the ICC, STL and as a campaign manager of the Peruvian ICC judge in the 2017 elections. She also worked as a civil attaché at the Embassy of Peru in the Netherlands, where she was in charge of the matters related to the International Court of Justice. Twitter: @andreatrigoso

In 2016, Ahmad Al Faqi Al Mahdi pled guilty, and was sentenced by the International Criminal Court (ICC) as the person who was in charge of intentionally directing attacks against the Timbuktu tombs in Mali. He was an expert Islamic scholar affiliated to Ansar Dine and Al-Qaeda for Islamic Maghreb (AQIM), two organizations that claimed to base their actions on Islamic Law.

This two-part post makes a comparative analysis of the attack on the Timbuktu tombs under International Humanitarian Law (IHL) and Islamic Law of armed conflicts (ILAC). The goal is to determine the lawfulness of the attack in both legal frameworks, trying to unentangle the myth that Islam permits and enables this type of conduct.

 Part I

This first post reviews the attack and the actors involved, considering the Islamic context and explaining the correspondent affiliations and institutions which serve as  the backdrop for the second piece that will analyze the attack in IHL and ILAC 

The attack to the tombs and the role of Al  Mahdi in the Hisbah

The ICC convicted  Al Mahdi to nine years of imprisonment for the war crime of attacking protected objects in accordance with Article 8 (2)(e)(iv) of the Rome Statute. The attack was carried out in  Mali, between 30 June and 11 July 2012, when Ansar Dine and AQIM had territorial control of the region. It was conducted against the following ten buildings of a religious and historical character in Timbuktu,: (i) the Sidi Mahamoud Ben Omar Mohamed Aquit Mausoleum; (ii) the Sheikh Mohamed Mahmoud Al Arawani Mausoleum; (iii) the Sheikh Sidi El Mokhtar Ben Sidi Mouhammad Al Kabir Al Kounti Mausoleum; (iv) the Alpha Moya Mausoleum; (v) the Sheikh Mouhamad El Mikki Mausoleum; (vi) the Sheikh Abdoul Kassim Attouaty Mausoleum; (vii) the Sheikh Sidi Ahmed Ben Amar Arragadi Mausoleum; (viii) the Sidi Yahia Mosque door and the two mausoleums adjoining the Djingareyber Mosque, namely (ix) the Ahmed Fulane Mausoleum and (x) the Bahaber Babadié Mausoleum  (Para. 9-10).

This conflict in northern Mali started in January 2012 with an armed uprising started by the “Mouvement National de liberation de l´Azawad” (MNLA), a Tuareg separatist faction, supported by three jihadist groups: AQIM, its offshoot “Movement pour l’unicité et le Jihad en Afrique de l’Ouest’ (MUJAO), and Ansar Dine. The coalition took over the North of Mali and evicted the Malian army and government administration, and what started as a secular rebellion was hijacked by the three Salafi-jihadist groups (at 915).

Ansar Dine and AQIM took control of Timbuktu around April 2012 until January 2013. They imposed Shar’iah law through religious and political edicts on the territory and established a local government that included an Islamic Tribunal, an Islamic Police Force, a Media Commission, and a morality brigade called Hisbah.(Para.31)

Al Mahdi was considered an expert in religious matters as he had received a Qur’anic education and gave lectures on Islam. He was in close contact with the leaders of Ansar Dine and AQIM, that proposed him to lead the Hisbah, which he accepted (at 505). From April to September 2012, he led the Hisbah and was in charge of regulating the morality of the people in Timbuktu and preventing, suppressing, and repressing anything that may constitute a visible vice.(para 32-33). To understand the role of Al Mahdi in the government, it is fundamental to understand first the Hisbah.

The Hisbah and the Muhtasib

Hisbah is a Qur’anic principle that instructs Muslims to command for good and forbid evil, which is mainly determined by the Shari’a, in particular by those rules that protect the five values of life, faith, intellect, property, and lineage (at 493-495). The muhtasib  is the person who bids good or forbids evil and must be sure that their attempts at prevention do not cause a greater evil (at 493).

Since the Hisbah is a function of the State, the head of the State is in charge of appointing the muhtasib that has three main tasks: policing of markets, monitoring the state of the roads and buildings in the city, and the enforcement of public morals. The muhtasib is someone who masters fiqh (Islamic jurisprudence) and the rules of Islamic Law, with sufficient knowledge of what is permissible and what is forbidden.

Ansar Dine and AQIM, in order to comply with the principle of Hisbah, established an institution with the same name in Timbuktu. Al Mahdi was the appointed muhtasib of the Hisbah, one of the four primary institutions established by Ansar Dine and AQIM. In that context, the governor appointed by Ansar Dine brought to Al Mahdi’s attention the practices of pilgrimage and worship in the mausoleums and asked him to monitor the cemeteries in order to stop and prohibit these practices. Al-Mahdi did so for around a month until the leader of Ansar Dine (Iyad Ag Ghaly), the chief of AQIM (Al Hamman), and a Mujtahid of the AQIM (Al Chinguetti) decided to destroy the mausoleums.(Para.36-40)

Al Mahdi, as the muhtasib, was consulted before the decision was made, and he indicated that all Islamic jurists agreed on the prohibition of any construction over a tomb. However, he advised against the tombs’ destruction for the sake of the good relations between the population and the occupying forces (para.35).

Nevertheless, once the attack was decided, Al Mahdi conducted it. He wrote a sermon dedicated to the destruction of the mausoleums for the prayers of the day of the launch of the attack, determined the sequence and the targeted monuments, and justified to the media the destruction of these places (para. 37) .

Islamic backgrounds of the actors involved in the attack

In order to carry out a comparative analysis of the attack under IHL and ILAC , it is important to first have a good understanding of the actors involved in it and their religious viewpoints. Thus, before entering into the legal analysis of the attack in part II of this blog post, I will provide a few short definitions of them.

One of the main actors  involved in the attack was AQIM, which was the group that had the decision-making power in Timbuktu. This group was the successor of the Salafist Group for Call and Combat created in Algeria in 1998. Following the union with the group Al-Qaida in 2007, the group was renamed as AQIM.

 As the successor of Call and Combat, AQIM also followed the Salafism,  a theological and legal orientation that represents Sunni Muslims who claim to be like salaf, a term used to designate the first three generations of Muslims. Members of the Salafist movement consider those first three generations of Muslims, as the ones who have most accurately preserved the Prophet’s teachings. Hence, Salafi Muslims sought to emulate their pious predecessors and support the implementation of Shari’a law).

AQIM was not only Salafist, but also a jihadi group ( jihadi-Salafist). As such, it  proclaimed that military jihad should be waged between Muslims and non-Muslims to expand the dār al-Islām (house of Islam), and also against what they perceive to be the apostate rulers in the Muslim world itself. Therefore, it was precisely under this jihadi-Salafist interpretation of Islamic Law that AQIM jointly with Ansar Dine governed Timbuktu, and considered the Muslims living and worshipping there as apostates because they were Sufists, a different current within Islam, that emphasizes introspection, love, and knowledge of God.

Sufists follow the Shar’iah with dedication, although they have criticized the emphasis on the legalistic aspect of Islam. Their rituals consist of the recitation of prayers, poems, and selections from the Qur’an as well as the repetition of divine names. They also dance and chant at the tombs of the saints, which is considered idolatry by some Muslims because God should be the sole object of worship. In this latter group are the Salafi Muslims that have considered Sufis as the enemy of Islam (p. 76). This rejection is more evident in radical groups, and it was materialized in the destruction of the mausoleums in Timbuktu ordered by AQIM, and the justification offered by Al Mahdi to the media, saying that they were places of idolatry (para.24 – 25).

Conclusion of the First Part:

Reviewing the specific context in which Al Mahdi acted, and identifying the framework of Islamic and Shar’iah law that serves as a legal (and not only religious) foundation for AQIM and Ansar Dine actions, is important for the analysis in the next post which considers whether these armed groups had actual basis in Islamic Law to conduct the attack, or if this behavior is only condemned in IHL.

Source: https://cisac.fsi.stanford.edu/mappingmilitants/profiles/aqim

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