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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.

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