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News Roundup – 9th April – 15th April

April 17, 2019

Female child soldiers: forgotten in violence?

Taliban: UN suspends sanctions against senior leaders

Iraq begins trial proceedings for 900 suspected Islamic State members

Al-Sarraj: ‘Haftar forces targeted a school in Tripoli’

East Libyan warplanes hit Tripoli government positions

Battle rages for Libya’s capital, airport bombed

More than 3,500 children have been recruited and used by non-state armed groups in north-east Nigeria since 2013

Rwandan rebel group spokesman faces terrorism-related charges in Kigali court

After the flood: How the Hidroituango crisis changed armed group dynamics in northern Colombia

Armed groups planned attack on Colombia’s Duque – attorney general

News Roundup – 2nd April – 8th April

April 10, 2019

UK under pressure to return children of Isis mothers

At least 15 reported killed as Syrian government, rebels exchange fire

How far can Haftar get with his Tripoli offensive?

Libya: international community warns Haftar against Tripoli attack

Fears of Libyan civil war as militias capture 145 Maftar troops

Taliban attack kills dozens in Afghanistan despite U.S. efforts in peace talks

Trump designates Iran’s Revolutionary Guards as foreign terrorist organisation

Islamic State releases first combat video from Mali

DR Congo arrests rebel leader wanted for mass rape

Venezuela: Maduro calls on armed groups to keep order amid electricity rationing

News Roundup – 26th March – 1st April

April 3, 2019

US-Taliban talks: Leveraging violence to negotiate peace?

Houthi leader attacks UK’s Jeremy Hunt over efforts to relax Saudi arms ban

Four years on, Yemen has become the Vietnam of our generation

The gendered impact of the conflict in Iraq on IS-affiliated women

Israel-Hamas ceasefire holds amid tense calm in Gaza Strip

Shabaab continues to target Mogadishu with car bombs

Islamic State claims several ISGS attacks across the Sahel

UN to probe ‘horrific’ Mali attacks as death toll jumps to 160

Philippines; War widows of Abu Sayyaf fighters suffer stigma

Colombia: Between war and indifference

News Roundup – 19th March – 25th March

March 27, 2019

Analysis: Islamic State spokesman claims group remains a ‘reality’ despite losses

Isis defeated, US-backed Syrian Democratic Forces announce

‘Scores killed’ after attack in central Mali village

Central African Republic opens cabinet to more armed groups to bolster peace

Burkina Faso: Atrocities by armed islamists, security forces

The making of militants in India’s ‘paradise on earth’

Myanmar armed groups agree to keep talking with government over ceasefire pact

Op-Ed: The ELN as a Colombo-Venezuelan rebel army

Duque claims south Colombia indigenous protests infiltrated by illegal armed groups after cop killing

At least 8 killed in explosion during indigenous uprising in southwest Colombia

Guest post by Frédéric Mégret: “Right authority and the privileges of non-state actors in armed conflict”

March 25, 2019

It is our pleasure to introduce Frédéric Mégret as a guest blogger on the site. He is a Full Professor of Law and a William Dawson Scholar at McGill, and has widely published on different issues, including on international criminal justice, international human rights law, IHL and general international law. Frédéric’s post will present some ideas included in his forthcoming piece on detention by armed groups.

Right authority and the privileges of non-state actors in armed conflict

On what basis might members of armed groups have immunity from prosecution for various acts engaged in in armed conflict? In a forthcoming chapter, I argue that specifically the question of detention by non-state actors in non-international armed conflict (NIAC) should lead us to question their fundamental authority to do so, especially if international human rights law is called to fill in the gaps left by IHL. Indeed, from a human rights point of view, what matters is not merely the conditions under which one detains, but whether one is recognized on some more foundational level as the sort of legal subject that can detain in the first place. One key intuition in that respect is that individual privileges to detain are not granted to combatants in their private capacity but as a result of some more fundamental quality of the entity within which they are embedded.

In this short intervention, I want to open up that inquiry to a discussion of the other main prerogatives that one associates with legitimate actors in war and that translate into immunities for individual combatants, namely the authority to engage in hostilities, and to kill or wound without risking being prosecuted for it. This is perhaps the most prized privilege in armed conflict, and the reasoning that applies to it probably also applies mutatis mutandis to the privilege to detain or prosecute and judge.

Combatant privileges are sometimes seen as a central feature of the laws of war. In truth, however, privileges are not a necessary feature thereof: one could have humanitarian obligations when engaging in certain actions but not be recognized as having immunity for having engaged in such actions in the first place. Such has long been the situation of armed groups in non-international armed conflict. The opposite is also true, namely that international law could confer immunities to combatants without imposing any humanitarian obligations.

That the two – humanitarian obligations and privileges of belligerency – are often connected in IHL is arguably largely contingent and accidental: it just so happens that the actors that traditionally IHL most wants to regulate (state combatants) are also those who happen to be privileged; privileging lawful combat explicitly in IHL, moreover, has the advantage that it helps contrast behavior that combatants can and ought to be prosecuted for (war crimes) and that which, as a result of the privilege, they cannot be prosecuted for. There may be an argument that combatants should be privileged because this practically incentivizes them to comply with the laws of war (there is a quid pro quo, as it were), but this is largely speculative.

Distinguishing the conferral of privileges and humanitarian obligations, however, is potentially a significant conceptual breakthrough when thinking about the responsibilities of actors in war. It makes it possible to think about the conferral of immunities without fearing that one is undermining the humanitarian edifice. It raises the question of what actors one might want to confer privileges to and on what basis. But if the privileges come from a source other than their humanitarian necessity, what is it?

The conferral of privileges has arguably always partaken of a deeper grammar of international law, that involves questions about the distribution of proper authority and that already decides which actors are ipso facto legitimate participants in warfare. Here, it should be acknowledged that our thinking about such issues has been radically impoverished as a result of the gradual, multi-secular alignment of the authority to use force in an in bello sense with the state alone. It is, however, possible to imagine states who would not be worthy of that authority; more relevantly for our purposes, it is possible to think of non-state actors who would be worthy of it.

Note that the authority to use force and resulting privilege for combatants does not entail that one fully approves of the use of force by the relevant actors. For example, a state involved in aggression is clearly violating the jus ad bellum but we still consider that, if any actor is going to use violence internationally, then it is the state. Rather, the authority to use force points to the fact that one exhibits, as an actor, certain kinds of generic characteristics that make one at least the sort of actor that can, presumptively, engage in war (even though one may do so illegally).

What, then, are the sources of the authority to use force in international law? One area where one might look is the historical practice of recognition of belligerency. This at least exists as a useful reservoir of situations where states decided that, although they might disagree with them, certain groups were sufficiently state-like to be recognized as belligerents. The basis for recognition of belligerency, however, tended to be quite discretionary, often simply recognizing the facts on the ground (e.g.: control of territory) and treating certain armed groups as legitimate contenders for state capture.

A second area that is relevant is of course IHL itself. Even though armed groups are not recognized privileges of combatancy merely because they have humanitarian obligations, their ability to honor these obligations may count towards their being recognized as combatants. At least in IACs, Article 4 of GC III recognizes that “[m]embers of other militias and members of other volunteer corps, including those of organized resistance movements” can be considered combatants if, inter alia, they are “commanded by a person responsible for his subordinates,” and “conduct their operations in accordance with the laws and customs of war.” This is of course a special case of forces that are already presumptively quasi-public, but it is telling that what tips the balance in their favor of their combatant status is the fact that they are essentially able to discharge their obligations under IHL.

In non-international armed conflict, the 1977 Additional Protocol II at least recognizes that it applies to conflicts in which “dissident armed forces or other organized armed groups which … exercise such control over a part of its territory as to enable them to … implement this Protocol. (emphasis added)” This has also been interpreted by the ICTY in connection to Common Article 3 (Boskoski, para 202). This is clearly only for the purposes of defining these provisions’ scope of application, but it does tangentially hint at the character and relative respectability of certain law-abiding armed groups as at least leading to a finding that there is an armed conflict.

One may wonder, however, whether the ability to implement IHL as a criterion for being recognized the authority to use force is really that helpful: it seems to link two things of a quite different kind (an ability and a privilege) which bear no necessary connection. Moreover, it creates a problem of consistency since the ability to implement IHL has clearly not provided the universal basis for recognizing a privilege. After all, armed groups in NIACs who are perfectly capable and willing to implement IHL do not thereby become privileged. Finally, the ability to comply with IHL may be a case of asking too little of combatants in exchange for granting them the exorbitant power to kill. For example, would we think generally that merely because an armed group will not target civilians, it should be elevated to the sort of group that can target combatants with immunity?

One route might be to say that an armed group is authorized and its combatants privileged if it respects the jus ad bellum (remember, the question of the privilege is disconnected from humanitarian obligations so there is no real risk of confusing the in bello and ad bellum). But this immediately runs into the hurdle that there is no obvious jus ad bellum applying to non-state actors (except for the case of wars of national liberation and Additional Protocol I). More importantly, we still consider state troops to have combat immunities even when they are in violation of the jus ad bellum so that compliance with the ad bellum cannot be a condition of immunities. A better view, then, is that “right authority” relies on some intermediary justification cut off from both the justness of the group’s cause (too onerous) and its ability to respect IHL (too little onerous). What is that dimension?

I can obviously not enter into the details of this complex question fully here, but it may be useful to return to the question of why states are actors that are universally considered to be authorized and whose combatants are privileged, even when they seem to fail to abide by most of their humanitarian obligations. Here lies a clue: historically, right authority was dependent on being a public actor waging war for public aims as opposed to a private actor engaging in private war. Transposing and adapting this idea to armed non-state actors, one might stop at the fact that, being private actors, they are one and for all excluded from the ambit of legality; but one might also usefully distinguish between armed non-state actors that exhibit quasi-public traits and those that are clearly involved in nothing more than private criminal violence, with a view to conferring more respectability on the former rather than the latter.

It is true that terrorists also engage in “public” as opposed to “private” violence, and no one suggests that they have the authority to do so. But the point seems to be that terrorists are not really public actors, in that they do not typically operate as representative institutions, with mechanisms of governance and accountability (and if they do, maybe we should rethink the terrorist label when applied to them). By contrast, some armed groups, whatever one may think of their cause, exhibit a certain quality of being state-like, that is, of rising to a certain public status.

Even that requirement of publicness may seem to be demanding too little given what is at stake in terms of privileging certain forms of violence. No doubt international law’s position of entirely excluding immunities for combatants in a non-international armed conflict is in part sound, especially since such immunities might be seen to objectively encourage the taking up of arms. But in a context where some states prove themselves very unworthy of their presumptive authority to use force and some armed groups behave relatively responsibly, who is to say if the systematic privileging of state’s authority over armed groups’ does not risk simply condoning the Westphalian status quo, in ways that are increasingly less defensible?

A human rights perspective, especially when IHL is silent on an issue, might help us refine what quality of publicness might be sought by international law and why. From a human rights standpoint, the authority to use violence must be premised on some deeper ability to guarantee human rights. Does the armed group act as a good faith custodian of the rights of the persons under its jurisdiction? Even if violations occur, does it react to them in ways that suggest an ability to own up to the human rights responsibilities thereby created? Does it more generally represent a certain popular will? Is its very resort to violence broadly justified on human rights grounds (for example as a last resort and proportionate response to attacks by the state)?

In a context where the authority of the state itself is changing and even precarious, it should come as no surprise that armed groups, bereft of any prima facie authority to use violence, should need to up the ante in terms of their human rights credibility. But as a jurisprudential matter at least, the authority of armed groups to use violence should be on the international legal horizon.

News Roundup – 12th March – 18th March

March 19, 2019

Environmental protection in non-international armed conflicts: finding the way forward

Protest, torture, siege, displacement: The Syrian revolution through a rebel’s eyes

Taliban wipe out an Afghan army company while talking peace with the U.S.

Military: 2 Iraqi soldiers killed in clashes with Kurdish PKK

Iraq: Key courts improve ISIS trial procedures

IDF investigates 11 Palestinian deaths on Gaza border, war crimes allegations

Hurdles on the road to peace in the Central African Republic

UN report details horrors of western DRC violence, urges action to prosecute those responsible and prevent further bloodshed

A challenge to FARC’s narrative on child recruitment

Colombia’s war crimes tribunal targets Medellin energy company EPM

Guest post by Alessandra Spadaro: “ISIS members detained by Kurdish forces in Syria: Operational and legal challenges”

March 13, 2019

It is our great pleasure to introduce Alessandra Spadaro as guest blogger on the site. Alessandra is a Ph.D. candidate at the Graduate Institute of International and Development Studies in Geneva, Switzerland. Her doctoral research concerns various instances of deprivation of liberty by armed groups under international law. She is currently based at Harvard Law School.

We are very pleased that Alessandra has chosen our blog to post this important analysis, which we are convinced our readers will find interesting. Here is Alessandra’s post!

ISIS members detained by Kurdish forces in Syria: operational and legal challenges

The Kurdish-led and US-backed Syrian Democratic Forces (SDF) are currently detaining over 3000 ISIS members, including foreign fighters and their families, in detention centers and camps in the North of Syria. Among them are British teenager Shamima Begum and her Dutch husband, Yago Riedijk, who have recently made headlines. Captured ISIS members in the hands of the Kurds come from over 46 countries, but – with some exceptions – most of these countries refuse to repatriate their citizens for various reasons despite numerous calls to do so by the SDF and the US. Some European countries are even stripping ISIS members of their citizenship in order to prevent their return.

While the responsibility of states supporting the detention operations of the SDF has been addressed elsewhere (see here and here), this post focuses on the practical and legal challenges for the detaining armed groups by analyzing four different options at their disposal: transfer, release, continued detention, and trial.

source:
https://www.aljazeera.com/news/2019/03/hundreds-isil-fighters-surrender-syria-baghouz-sdf-190306160315079.html

Transfer of the detainees is the option that the SDF would prefer. Recent reports indicate that some non-Iraqi ISIS members have been transferred to Iraq. The Iraqi Prime Minister has however announced that Iraq will only receive foreign fighters from the Kurdish forces in so far as they can be prosecuted by Iraqi tribunals for terrorist offenses committed in Iraq or can be transferred to their countries of origin. In addition to being problematic in practice, given the reluctance of the concerned states to receive the detainees, transfer is also not straightforward from a legal point of view. There is a real danger of violation of the fundamental rights of the detainees by some of the states to which they may be transferred. Such danger triggers the principle of non-refoulement. Although this principle is not explicitly mentioned in Common Article 3 (CA3), according to the 2016 ICRC Commentary, both states and non-state parties to non-international armed conflicts (NIACs) are prohibited from transferring persons in their power to another authority when they would be in danger of suffering a violation of fundamental rights upon transfer (paras. 708, 713). To comply with the principle of non-refoulement, the SDF should “assess carefully and in good faith whether there are substantial grounds for believing that the person would be subjected to torture, other forms of ill-treatment, arbitrary deprivation of life or persecution after transfer” and not transfer them until measures to remove this risk have been taken (para. 715). While the Commentary mentions post-transfer monitoring mechanisms that have been put in place by states and international organizations (para. 716), it does not elaborate on whether the same is expected of armed groups nor on whether armed groups would have the ability to do this. Although it seems unlikely to happen for the time being, the transfer of detainees to the Syrian government authorities, which have notoriously committed atrocities against detainees, might be hindered precisely by the principle of non-refoulement.

In light of the difficulties in transferring the detainees safely, the SDF may opt for a second choice: to release them. Reportedly, the SDF have already released hundreds of Syrians who only took up administrative jobs within the Islamic State. It is also reported to have discussed releasing fighters and their families. International law does not prohibit this second scenario and, indeed, release might be a valid solution to end an otherwise potentially unlawful detention. However, releasing thousands of ISIS members might have dire security consequences. Released fighters might go back to participating in the hostilities, and the progress made towards the territorial eradication of the Islamic State might be halted or even reversed. Some might also return to their countries of origin or travel elsewhere to carry out terrorist attacks in the name of ISIS and or to radicalize new recruits.

The third and, for now, most likely scenario is that the SDF might simply continue detaining the ISIS affiliates they have captured. Although the Kurds may want to redirect some of their resources against Turkish(-backed) forces once the US troops withdraw from Syria, at the moment they might continue investing them in the detention centers and camps. Given the stalemate on the transfer front, the US military has been funding the improvement of the capacity of the SDF to hold detainees and prevent jailbreaks. However, band-aids don’t fix bullet holes. In the long run, this situation is likely to become untenable: as the number of detainees keeps increasing, the already difficult conditions of detention in the Kurdish-run camps might further deteriorate. While Kurdish officials claim that conditions of detention especially for women and children and the treatment of detainees meet international standards, the Independent International Commission of Inquiry on the Syrian Arab Republic, among others, has reported otherwise (paras. 15-18, 44).

The hypothesis of continued detention is also problematic for other reasons, in particular the prohibition of arbitrary deprivation of liberty. Arbitrary deprivation of liberty is prohibited in armed conflict. In practice, in NIACs both states and non-state armed groups detain individuals whose activity is deemed to pose a security threat to them, but – as the readers of this blog probably know – the basis on which they may do so is subject to debate (see here and here for two different perspectives). According to the ICRC, IHL does provide an inherent power to detain but, in keeping with the principle of legality, grounds and procedure for deprivation of liberty in NIAC must be explicitly provided elsewhere (para. 728). It is uncertain whether such grounds and procedures have been adopted by the SDF, and whether they have created initial and periodical review mechanisms to ensure that each individual is given the chance to challenge the legality of their detention and is released once the reasons for detention have ceased to exist. In this context, indefinite and arbitrary detention is a real and frightening possibility.

It is also not clear whether all or some of the former ISIS affiliates are being detained for criminal or security reasons. Although they might be prosecuted in their home countries for membership in a terrorist organization or for war crimes, the detained women are not currently accused of any crimes and the Kurdish forces have had a hard time identifying their role within ISIS as well as determining “how much of the ideology they still endorse”. Additionally, by signing the Geneva Call Deed of Commitment for the Protection of Children from the Effects of Armed Conflict in 2014, the People’s Protection Units (YPG), which are the primary component of the SDF, undertook “to treat humanely children who are detained or imprisoned for reasons related to the armed conflict, in accordance with their age and gender specific needs, recognizing that deprivation of liberty may be used only as a measure of last resort and for the shortest appropriate period of time”.

On the other hand, based on infamous reports about the brutality of the Islamic State, at least some former fighters might be suspected of having committed international crimes, rather than being interned for security reasons alone. For reasons of brevity, the regulation of detention for the purposes of prosecution in NIAC will not be discussed in detail in this post. It is however worth mentioning that the fourth option for the SDF might in fact be to try at least some of the ISIS members they detain. Such trials might encounter more than one legal hurdle. Common Article 3 prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples”. The violation of this provision can be prosecuted as a war crime under Article 8(2)(c)(iv) of the Rome Statute of the International Criminal Court. While it seems possible for armed groups to establish courts meeting the requirements of Common Article 3, uncertainty regarding the applicable law (see here at para. 692) and the composition of such courts persists (see here at para. 33). Kurdish armed groups, like other groups with extensive control over territory, have established different types of courts in Syria to handle both civil and criminal cases (see here at pp. 106-107). Among them are ad hoc anti-terrorism courts, which however reportedly prosecute only Syrians and not foreigners. Additionally, the extent to which such courts are in fact able to grant a fair trial to defendants is questionable.

At the moment, none of the identified scenarios constitutes an acceptable solution. It is up to states to find one in agreement with the Kurdish forces. For instance, states might consent to have the detainees transferred to them or might decide to invest seriously in enhancing the capacity of the SDF to comply with international law rules relating to detention and fair trial. The hope is that the rights of detainees are given the paramount importance that they deserve, sooner rather than later.