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News Roundup | 7 – 13 October

October 14, 2019

Islamic State accountability, child soldiering, and conflict ignites between Turkey and Kurdish-Syrian groups.

Accountability for Islamic State fighters: What are the options

SDF says Turkey-backed rebels killed Kurdish politician, rebels deny it

Turkey bombards Syrian Kurdish militia, thousands flee as death toll mounts

Syrian Kurds outgunned but vow to inflict toll on Turkish army

Turkish and Syrian rebel forces to start Syria offensive “shortly” – Erdogan’s aide

Iraqi armed groups raid offices of media outlets covering protests

Peace may bring freedom to South Sudan’s child soldiers, but not the help they need

Doing bad to be good: Remedying the realities of youth participation in Colombia’s non-state armed groups

UN envoy: Vast majority of Colombia rebels back peace deal

Colombia’s FARC party expels rebel faction

News Roundup | 23rd September – 6th October

October 8, 2019

23rd September – 29th September

Terrorist groups, artificial intelligence, and killer drones

Russia says it has downed almost 60 drones in Syria this year

Yemen’s rebels say attack on Saudi border frontline captured ‘thousands’

Afghans vote in presidential election despite attacks by insurgents on polling stations

A desperate battle, and a victory for now, at a remote afghan outpost

How Taliban interference is hijacking Afghanistan’s election

Libya’s Khalifa Haftar says open to dialogue as fighting drags on

Practical guide: To fulfil the reintegration needs and rights of girls formerly associated with armed forces and armed groups in South Sudan

Nigeria: Abducted aid worker killed by ISIL affiliate

FARC leaders admit responsibility for mass kidnapping of civilians

30th September – 6th October

Syrian rebel groups merge as Turkish offensive looms

Northeast Nigeria: More children cleared of ties with armed groups and released from administrative custody

Rwanda charges 25 men tied to rebel outfit with treason, other crimes

Dozens of troops killed, scores missing after raids on Mali bases

Somali commandos, U.S. air strike repel Islamist insurgent attack

International Criminal Court puts Mali war crimes suspect to trial

Cameroon opens dialogue to end Anglophone separatist crisis

Armed group seizes four police in Shan

The Colombian city forgotten by peace

Armed militias are taking Trump’s civil war tweets seriously

News Roundup | 16 – 22 September

September 23, 2019

The Blue Nile front, multiple Taliban attacks, and Sylvestre Mudacumura killed.

Pro-Iran fighters killed in unidentified strikes near Syria-Iraq border

Suicide bomber and gunmen hit eastern Afghanistan gov’t office

Taliban delegation visits Iran to ‘discuss latest developments’

Taliban attacks kill 48, Afghan leader unhurt as bomber targets rally

Saudi oil attacks raise questions about nature of Yemen conflict and legitimate military targets

Houthi rebels in Yemen say they will stop attacks on Saudi Arabia

DRC army says Rwandan Hutu rebel commander Mudacumura killed

Islamic State trains in Somalia’s Puntland

Islamic State fills the void in Nigeria as soldiers retreat to ‘super camps’

Blue Nile: Sudan’s forgotten front

Yearbook of International Disaster Law – call for abstracts

September 23, 2019

Please see the link here for a call for abstracts for Issue no. 2 of the Yearbook of International Disaster Law (Brill). The deadline is 31st October 2019.

The Yearbook of International Disaster Law (YIDL) aims to foster the interest of academics and practitioners on legal and institutional issues relevant to all forms of natural, technological and human-made hazards, including rapid and slow onset events, but excluding events such as armed conflicts or political/financial crises per se. The YIDL is a double-blind peer review journal published by Brill.


Abstracts for potential articles shall be sent by 31st October 2019 at info@yearbookidl.org. Abstracts should be between 700 and 1000 words. Authors are also kindly requested to attach a short curriculum vitae. Further details are available in the call.

Organizing Responses – a (partial) reply to the blog symposium

September 23, 2019

I feel truly honoured to see such rich posts by a range of great scholars and practitioners, each raising important and though-provoking questions on and criticism of my book Organizing Rebellion. This leaves me with the intimidating task of ‘organizing responses’. While I will not be able to engage with each question or disagreement (and I must admit that I do not necessarily have answers to all issue), I will respond to some points (without suggesting that these are more important than others). In fact, each contributor would deserve a full post in response! Following the structure of the book, I will first respond to IHL issues, and then turn to human rights and international criminal law.

Non-State parties to armed conflicts – more than the ability to engage in violence?

In Organizing Rebellion, based on law and practice I identify three strict criteria (as opposed to the five groups of indicative factors established in by the ICTY in Boskoski, para. 199) for classifying non-State armed groups as parties to armed conflicts. I conclude that a group needs to be (1) a collective entity (2) able to engage in sufficiently intense violence and (3) able to ensure respect for fundamental humanitarian norms. 

Laurie Blank poses a number of important questions on which actors need to determine whether a group is sufficiently organized, when, and according to which standard of certainty. She underlines that those classifying a conflict will necessarily draw conclusions based on the information available at the time. Among the three criteria I identify, the one that Laurie rightly points out as normally most assessible is whether a group is able to engage in sufficiently intense violence. In contrast, information on the internal organization of an armed group is more difficult to come by. As in my view the current state of international law – whether States or other actors classify a situation while it is unfolding or with the benefit of hindsight – does not allow to reduce conflict classification to an assessment of the intensity of violence, I see the dilemma that Laurie points out: should a State be given the benefit of the doubt if its classification was ‘reasonable at the time and based on the information available’; or should the State be required to err on the side of caution unless it has sufficient proof of all criteria? While I do not have a definite answer, Laurie’s reference to the ‘reasonable commander’ standard makes sense to me: parties to the conflict – and other actors engaged in conflict classification – have to take decisions at the time and in the context in which they operate. At the same time, this standard also means that if the available facts do not allow for the conclusion that a situation amounts to an armed conflict, operations have to be conducted in conformity with human rights law only.

Marco Sassòli engaged especially with the criterion that armed groups need to be able to ensure respect for fundamental humanitarian norms. He remarks that I remain rather vague on which IHL rules are the ‘fundamental’ humanitarian norms that armed groups must be capable of respecting (and I confess this is correct). This is because I do not think that entering into a rule-by-rule assessment is necessary for the purposes of conflict classification. The ability to ensure respect for fundamental humanitarian norms comes down to the ability of a group’s leadership to impose discipline: in practice, ensuring that members of the group do not share intelligence with the adversary (an operational decision, no required by IHL), or ensuring that they do not torture a detainee (required by IHL), is essentially a question of discipline. In other words, for the purposes of conflict classification, IHL requires that armed groups are sufficiently organized to ensure respect for prohibitions set out in IHL, including not to pass sentences without a fair trial, not to pillage, and not to deprive anyone of their liberty in an arbitrary manner or without basic guarantees. While this approach is in line with the practice and scholarship I examined (pp. 41-42; 87-92), Marco is right in pointing out that binding armed groups by IHL raises very practical and partly unresolved issues, such as how a commander can comply with the obligations deriving from ‘command responsibility’ without having the capacity to conduct trials necessary to punish serious IHL violations?

How to merge two or more armed groups into one party to conflict?

Katharine Fortin takes up my arguments on when two or more different armed groups can be legally considered one party to conflict. As she points out, this is a very topical but underexplored issue. Katharine underlines that the issue can arise in at least two contexts: (1) at the outset of a conflict, there might be different groups (not yet party to the conflict) joining forces. Or (2), at a later point, the question may arise whether a certain group (newly arising or already existing) can be considered to be part of (or ‘belonging to’, or being ‘under the control of’) an existing non-State party to the conflict. International law does not provide us with clear answers on when different armed groups may considered as merging into one party to conflict. I argue that – absent a very clear C2 structure – in order to qualify as one party to a conflict, there needs to be either a form of leadership in a horizontally structured group (context 1) or the existing party to the conflict (context 2) that exercises what I term ‘operational coordination’ and ‘strategic authority’ (see pp 81-85; 101-104, as well as here) over either the subgroups or the other armed group. I suggest only one approach because after all, in both contexts the question is how to establish a sufficiently strong link between one or more non-State armed groups.

Different degrees of ‘organization’ in IHL and human rights law – really?

A number of contributors commented on armed groups under more than one field of international law. Before looking at some of these comments, I need to concede to one point already: I have written about ‘armed groups’ under IHL, human rights, and criminal law. However, Marco is probably right that the fact of being ‘armed’ is only a condition sine qua non under IHL.

Daragh Murray wonders whether there really is a difference between the degree of organization necessary to be party to an armed conflict and that of being potentially bound by human rights obligations (I say ‘potentially’ because I do not conclude or claim that all armed groups have human rights obligations (yet) as a matter of law). He suggests – in line with his inspiring book – that the basic level of internal organization is essentially the same for armed groups under IHL and human rights law; however, the scope of obligations of a group would depend on the context in which the group operates.

As I explain at the outset of Chapter 6 (p. 147, but admittedly I should have repeated this more often), in order to have possible human rights law obligations, armed groups should be a collective entity able to ensure respect for the applicable law. I do not see great differences between these criteria and similar ones under IHL; hence, one could say that the core is the same (however, IHL also requires that a group is able to engage in intense violence, which is not the case under human rights law). Afterwards, in my view the degree of possible human rights obligations – in particular obligations to protect and to fulfil a wide scope of human rights – depends on the context in which the group operates (territorial control?) and the capacity or power of the group (is it exercising quasi-governmental authority?). While I tend to agree that respecting basic IHL and human rights law does not necessarily require a different kind of capacity, maintaining law and order or fulfilling the right to health under human rights law is a different ball game.

Drawing on her excellent book on accountability of armed groups under human rights law, Katharine Fortin further suggests that when determining possible human rights obligations, we may not need to draw a bright line between armed groups exercising de facto control over territory and those exercising quasi-governmental authority. And I agree: I do not see the three categories I suggest as ‘silos’ with thick walls but rather as signposts or analytical tools that provide orientation when reflecting about possible human rights obligations of a wide spectrum of groups. On this scale, however, I do see significant differences in the scope of possible obligations between groups gaining de facto, and often short-term, control over a village during a conflict, and groups exercising State-like authority in defined territory.

In this respect, in response to Ezequiel Heffes’ important – and to my knowledge unexplored – point on whether the same armed group could have different human right obligations in different operational contexts, I would probably argue that it can – depending on the degree of control it exercises. To some extent, this would be in line with the view that States have different degrees of human rights obligations depending on whether they operate at home or extraterritorially. In contrast, if an armed group is involved in an armed conflict reaching the threshold of Additional Protocol II, I would see the group bound by applicable IHL rules in the whole territory of the State in which it operates.

One challenge in writing about possible human rights obligations of armed groups is that there are few treaties that contain such obligations, and actual State practice – other than in UN fora – is rare. Similarly, the question of which weight to give to the practice and views of armed groups in the formation of international law remains as intriguing (as pointed out by Ezequiel Heffes) as it is unclear. While I see the significant value in working with armed groups to develop their codes of conduct (as done by the ICRC), in engaging groups to sign deeds of commitments (as done by Geneva Call), or developing action plans to protect children (as done by the UN), I would refrain from making clear findings on the international legal significance of armed group’s practice or commitments. I would, however, always stress their practical value to ensure respect for relevant norms.

From philosophy, to law, to synergies between possible human rights obligations and the obligation not to commit crimes against humanity

During my journey and attempt to make sense of legal definitions and the (short) history of international criminal law, I delved into philosophical writings on international crimes. When inquiring what makes a crime a ‘crime against humanity’, meaning what situations convinced States that certain crimes shall be criminalized under international law, I concluded that the essence of a crime against humanity is that large-scale and heinous crimes are committed against populations deprived of protection against these acts. This would mean that these crimes are either committed by States or State-like entities, or contexts in which the State is unable or unwilling to protect the victim population. Adejoké Babington-Ashaye takes issue with this finding, arguing that the societal context in which a crime is committed should not be a determining factor. And I agree with this legally speaking (as I do with most of her post!): I do not intend – and I hope I am clear on this in the book – to introduce another legal criterion or requirement characterizing crimes against humanity. From a philosophical point of view, however – and this means at a meta-level, not the level of the law – I am convinced that what makes a crime a ‘crimes against humanity’ is more than the fact that they are mass atrocities.

Mathias Holvoet further delves into the question of whether the obligation not to commit certain acts (which admittedly resemble human rights violations) as part of crimes against humanity would also suggest that relevant groups (or individuals?) have human rights obligations? I am not convinced that drawing parallels or synergies between international criminal law and human rights law is the best avenue to establish human rights obligations of armed groups. In my view, and I think Mathias agrees, the criminal acts underlying crimes against humanity or genocide are not criminalized (and therefore prohibited) because they are violations of the perpetrator’s human rights obligations but because of the contextual elements that elevate such acts into the realm of international crimes. Interestingly, Mathias nonetheless raises the question if there is not more to explore in the relationship between crimes against humanity and human rights law. And it seems there might be. For example, I argue that only entities that have an obligation to protect humans under their control (i.e. States and possibly State-like groups) can instigate crimes against humanity through a policy of tolerating relevant criminal acts. Moreover, the underlying acts of apartheid, arguably enforced disappearance, and persecution (if the latter is understood as meaning serious deprivation of fundamental rights) appear to require a certain degree of power and control over territory, which I do not think is the case for other acts. As a result, not all armed groups will be able to create an environment in which certain crimes against humanity can be committed.

Which genocidal crimes can (armed) groups commit?

Turning to armed groups and genocide, Sareta Ashraph inquires whether I believe that the drafters of the Genocide Convention deliberately drafted certain genocidal crimes in a way that implicitly requires ‘an organizational structure to accomplish the commission of crimes of such magnitude’ while deliberately omitting State involvement as a requirement for the commission of genocide. To be frank – I do not know, and the drafting history does not seem to tell us. My impression is that while the issue of State involvement as a legal requirement for the crime of genocide was discussed and dismissed, the drafters did not consider the issue of State or collective entity involvement when elaborating the underlying crimes. In this respect, I agree with Sareta that the rather open or general formulations included in the Genocide Convention provide some flexibility for judicial organs to apply the Convention to changing realities – such as new weapon or communication systems that seem to make the commission or instigation of certain crimes easier.

In this respect, Melanie O’Brien makes an important point by challenging my conclusion that while some of the underlying crimes of genocide will not need involvement of a State or State-like entity (killing or causing serious bodily or mental harm), others often do (namely ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction’, ‘imposing measures intended to prevent births within the group’, or ‘forcibly transferring children of the group to another group’). In fact, given the (fortunately) limited judicial practice on genocide, it is difficult to make very firm statements one way or another. While I do think that in all likelihood the latter crimes listed above need the involvement of an entity that exercises some form of control over the target group, I refrain from making categorical statements on this point (see p. 300), and I would not exclude that the carefully crafted examples Melanie provides could amount to genocide, if all contextual elements are met.

Last but not least Thank you – once again – to all contributors and to the editors of AGIL and Opinio Juris

Organizing Rebellion Symposium: Context or Abstract? A victim-centric approach to understanding key elements of crimes against humanity

September 20, 2019

Adejoké Babington-Ashaye is a former investigator at the ICC, an expert with the Wayamo Foundation on national justice and accountability measures for international crimes, a Fellow at the Harvard Law School and Senior Counsel at the World Bank. Her contribution is written in her personal capacity and the views contained herein do not necessarily reflect those of these affiliations.

What merit lies in the strict adoption of a statist approach to crimes against humanity? According to Rodenhäuser, very little. In Part III of this important book, Rodenhäuser tackles the state or organizational policy requirement of crimes against humanity under the Rome Statute, notably the capability of a non-state actor to commit an attack. His in-depth analysis of the different non-state actors reveals two broad categories. On one hand, there are non-state actors engaged as parties to an armed conflict with the capacity to attack military or civilian targets. This group is considered to have the requisite degree of organization to commit an attack against a civilian population. The second broad category contains non-state entities that are not party to an armed conflict. Their organization and, by extension, capability to commit an attack meeting the definition of crimes against humanity, seems less obvious. Some, such as Judge Kaul in this Dissenting Opinion, have argued that the historic development of crimes against humanity suggests an interpretation that limits the commission of such crimes to a state or an “entity which may act like a State or has quasi-State abilities.” Others, such as Hansen, have roundly criticized a statist approach as being “based on a Eurocentric understanding of mass violence where only the state (or entities that resemble a state) is seen as capable of adopting and implementing policies to conduct such violence.”

Drawing from the Kenya situation before the ICC, Rodenhäuser rightly suggests that a contextual interpretation, instead of an abstract and history-based “state-like” approach, is more useful. A contextual interpretation would take into consideration the fact that, like Werle and Jessberger contend, “the crucial factor is not the internal structure of the group, but its potential, in terms of both personnel and physical capacity, to commit a widespread or systematic attack on a civilian population.” To Rodenhäuser, if the goal of international criminal justice is to “address heinous crimes that shock humanity’s conscience,” then there is no merit in excluding acts that meet all other elements of crimes against humanity on the sole basis that these acts were not committed by states or state-like entities. I could not agree more. For those engaged in the practice of international criminal law, this is a critical point. Such a restriction would not only cause unwarranted obstacles to international criminal justice, it would also preclude the ability of international criminal law to respond to the ever-growing variety of entities capable of committing mass atrocities. And, realistically, should victims be denied justice on an international scale merely because the entity responsible for the attacks did not control a territory or possess other “state-like” qualities?

Rodenhäuser also presents a carefully written and detailed analysis of the development of crimes against humanity as a category of international crimes. From the Nuremberg Trials to the international criminal tribunals and hybrid courts, the reader is taken on a journey towards a deeper understanding of the definition of crimes against humanity. This journey culminates with the codification of crimes against humanity in the Rome Statute and the interpretations adopted by the International Criminal Court. Throughout, Rodenhäuser reveals the struggle between a contextual and abstract interpretation noting that too much of a contextual interpretation has been termed by some as “victim- focused teleological reasoning.” However, the need for an unashamedly victim-centric approach to key elements of crimes against humanity is evident in the very definition of this category of crimes. Such an approach is rooted in the wording, context, and object and purpose of Article 7 of the Rome Statute and the preamble to the entire treaty. As Rodenhäuser correctly observes, adopting a contextual approach to interpretation leaves sufficient flexibility to “address a broad variety of situations and actors in order to end impunity for unimaginable atrocities.”

It is for this reason that the introduction of a “societal context” element to crimes against humanity was somewhat surprising. In expanding the concept of crimes against humanity to non-state entities, Rodenhäuser notes that “[d]iscussion so far has shown that in addition to being large-scale crimes targeting populations, CAH are distinguished from ordinary crimes by the societal context in which they occur.” (Emphasis added).  He posits that the study undertaken “has shown that crimes harming humanity are best understood as heinous human rights violations targeted at a victim group or population in a societal context in which victims are deprived of effective protection by the governing authority.” In that sense, crimes against humanity “signify large-scale crimes committed in accordance with a group policy and taking place in a societal context in which the territorial state is either actively or passively involved in the crime, or unable to prevent or halt it.” According to Rodenhäuser,

With regard to the societal context of CAH, at least two scenarios are conceivable. On the one hand, perpetrators would either need to constitute themselves as the governing authority, or be capable of co-opting the governing authority, in order to enable the commission of large-scale crimes and avoid prosecution. On the other hand, irrespective of the non-state entity’s capacity, CAH can also be committed if the state is simply unable to fulfil its pro­tective obligations towards the victim population. While the former case requires a certain political power on the part of the non-state entity, in the latter case it is the incapacity of the state that enables the commission of the crime. The territorial state would need to be dysfunctional to the extent that it is unable to prevent or to halt the crimes.

Finally, he asserts that “there is no need for international criminal justice if a non-state organization commits a widespread crime against a civilian population in a state in which functioning law enforcement structures effectively respond to and subsequently prosecute the crimes.”

I fully agree with Rodenhäuser that international intervention as envisioned in the Rome Statute is unwarranted where domestic law enforcement structures function and the state has demonstrated a willingness and ability to address the crimes by itself. This is the essence of the principle of complementarity. However, I wonder if the inclusion of the “societal context” to the elements of what distinguishes a crime against humanity from “ordinary crimes,” would result in a limitation of the scope of crimes against humanity. This may possibly achieve a different end than Rodenhäuser might have intended. Rodenhäuser seems to acknowledge this since he adds that while “this conceptual understanding of CAH is not fully embraced in the crime’s legal definition, it can provide important guidance in borderline questions.” Perhaps, and perhaps not.

It is questionable whether the societal context in which the crimes occur is, or should ever be, a determining factor for when certain crimes are considered crimes against humanity. Furthermore, the ability of a state or governing authority to effectively protect a civilian population should not be a determining factor of whether the heinous human rights violations which occurred are understood as “crimes harming humanity.” If crimes meet the legal requirements of crimes against humanity under the Rome Statute, is that not sufficient? Should these crimes not be considered crimes against humanity even if they occur in a societal context where a functioning criminal justice system exists? To me, there is a difference between the characterization of the crimes per the legal definition under international law and the response mechanism – international or national – that is adopted to address these crimes. To require an element of dysfunction or state collusion in conceptualizing the types of crimes that amount to crimes against humanity appears to conflate the characterization of the crimes with the elements required to trigger international criminal justice intervention. Illustratively, to many, the intentional killing of thousands of civilians in the United States on 11 September 2001 amounted to crimes against humanity because the requisite elements of this international crime were arguably met. The fact that the 9/11 attacks are dually labelled terrorism and have been predominately addressed through domestic proceedings would not erase the characterization of these attacks as crimes against humanity. The United States did not need to be viewed as a failed or dysfunctional state for humanity to also be harmed by the attacks which occurred that day. Thus, it is not the societal context in which victims of mass atrocities find themselves that determines whether humanity has also been harmed by the occurrence of these crimes. The international community is always affected whenever mass atrocities occur regardless of where they occur, or the societal contexts in which the occur. And so, it is suggested that humanity is harmed whenever, per the legal definition of crimes against humanity, a widespread or systematic attack is directed against a civilian population pursuant to, or in furtherance of, a state or organizational policy, regardless of the societal context in which the victims find themselves. How humanity responds is a different matter, and this is where, as noted above, I agree with Rodenhäuser. If the societal context in which these crimes have occurred is such that the state is able to conduct effective national investigations and prosecutions (on behalf of humanity), then international criminal justice intervention is not necessary. However, the adoption of a non-international justice response does not change the characterization of the crimes which have occurred, and we must be careful not to conflate the characterization with the response. In other words, the societal context in which the crimes occur, in my view, should not be a distinguishing factor between crimes against humanity and “ordinary crimes.”  

These observations do not detract from Rodenhäuser’s extraordinary achievement in compiling a comprehensive review of the responsibility of non-state armed groups under international criminal law and setting out general conclusions which can assist the investigation and prosecution of atrocity crimes. He clearly notes that territorial control is not a prerequisite for an organization to develop and promulgate a policy underlying crimes against humanity. Furthermore, as Rodenhäuser writes, “states have not included the crimes’ history as a source of law in the ICC Statute.” Therefore, the characteristics of the collective entities behind these crimes should be derived from the crime’s definition not an abstract historical viewpoint. This approach to interpretation is critical to ensuring international criminal law is not shielded from changing realities.

Organizing Rebellion Symposium: Who Can Commit Genocide? A Discerning Analysis of Non-State Entities as Perpetrators

September 20, 2019

Up at Opinio Juris, you can find the latest post by Sareta Ashraph “Organizing Rebellion Symposium: Who Can Commit Genocide? A Discerning Analysis of Non-State Entities as Perpetrators” in our co-hosted book symposium on Organizing Rebellion. Check it out here!