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

May 21, 2020

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

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

IHL applicable to all NIACs and its limits

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

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

Whilst the report recognises this, it remains unclear – beyond a somewhat vague reference to a ‘pragmatic approach’ relying on ‘human rights responsibilities’ (p.54) of armed groups that act like state authorities – how the report wishes to close this gap, and why it might be desirable to close it by either relying on an adapted law of occupation, on human rights law or on a combination of both. This is unfortunate, as it replicates legal uncertainties for all parties involved that are rife in UN resolutions and reports on situations involving the territorial control by armed groups, and which are ultimately undermining the protection of individuals who come under this control. To give but one example of such confusion: reports of the UN Human Rights Monitoring Mission in Ukraine frequently assert that human rights ‘violations’ or ‘abuses’ are committed by the ‘Donetsk People’s Republic’ (DPR) and the ‘Lukhansk People’s Republic’ (LPR) and that the DPR and LPR should put an end to such ‘violations’ or ‘abuses’ (see e.g. here, paras.6 and 129; and here, paras.9 and 129 and here, para.161), presumably by taking appropriate measures and establish relevant structures and institutions (see e.g. here, recommendations h) and i)). At the same time, these reports constantly reiterate that ‘steps taken by the DPR and LPR to establish their own ‘legislative’ frameworks and systems of ‘administration of justice’ (‘police’, ‘prosecutors’ and ‘courts’) are contrary to the Constitution of Ukraine and international law…’ (see e.g. here, para.129). These latter statements ignore the fact that putting an end to human rights ‘abuses’ and ‘violations’ in DPR- and LPR-held territories arguably requires that the LPR and the DPR inter alia adopt ‘legislative’ frameworks and engage in the ‘administration of justice’.

Filling gaps: the law of occupation, human rights law and question of legitimising non-state authority

Below I will sketch out the argument that the underlying rationale of both the law of occupation and human rights law should be taken into account in the debate on how these gaps could be closed. Doing so is a necessary first step when considering the broader consequences of relying on one or the other body of law, or possibly a combination of both.

A helpful starting point for this endeavour is to think about the different ways in which the law of occupation and human rights law envisage that control or power (authority) is exercised over individuals by an occupying power and by a human rights duty-bearer respectively. Broadly speaking, an occupying power’s control or power is based on coercion/military strength. This is clear from Art.42 of the 1907 Hague Regulations, which refers to occupied territory as ‘territory … actually placed under the authority of the hostile army’. As academic commentary confirms, the authority of an occupying power is ‘energised by … military capability’ (at 35-36); is resting upon ‘naked power’ or the ‘sheer facticity of the occupant’s military power of command’ (at 726-27 and 738), which enables it to coerce the occupied population into submission.

By contrast, the control or power (authority) exercised by a human rights duty-bearer is based on political and legal legitimacy, normally vested in democratic or democratising institutions, and not merely on the duty-bearer’s ability to impose its will by sheer force or coercion. The democratic character of human rights duty-bearers derives from the instrumental relationship between human rights, equality and democracy that permeates regional and global human rights treaties. To explain this a bit further: human rights treaties, through equality and non-discrimination clauses, indicate that each human being’s rights are of equal worth, and they therefore have to be protected equally. This will inevitably lead to conflicts between rights and between rights and other community interests that can be solved in many ways under limitation clauses in human rights treaties. The protection of human rights at the domestic level thus involves constant balancing and priority setting in domestic law and policies, something which can legitimately only happen in an ‘effective political democracy’ (or ‘democratic society’) that respects everyone’s human rights equally, through guaranteeing political equality.

These differences between the law of occupation and human rights law are reflected in many of their respective rules. For example, they are prominent in the respective obligations and rights to adopt ‘domestic’ law as well as the limits to these rights/obligations. Whilst an occupying power shall explicitly refrain, as much as possible, from changing the law in occupied territory (Art.34 HReg), it can ‘legislate’ to protect its security, to ensure the orderly government of the occupied territory, and to comply with its obligations under the law of occupation (Art.43 HReg/Art.64 GCIV). A state as a human rights duty-bearer, by contrast, has a comprehensive right (and duty) to adopt domestic law enabling the implementation of inter-related human rights, covering all relevant areas. When it comes to legislative processes, ‘laws’ adopted by an occupying power usually take the form of military decrees, whereas the human rights legality standard demands a democratic (even if indirect) pedigree (at 319) of most domestic laws. When it comes to quality standards, the law of occupation stresses that criminal laws adopted by the occupying power must be non-retroactive and made public (Art.65 GCIV); whereas the human rights legality standard includes additional requirements, such as accessibility and foreseeability (precision, generality, consistency, proportionality), non-discrimination, and, if a law grants wide discretionary powers to a governmental authority, it must provide for judicial safeguards (for more details, see here and here).

Similar differences can be observed when it comes to rules on the exercise of judicial power by an occupying power on the one hand and a human rights duty-bearing state on the other hand. An occupying power can set up ‘properly constituted, non-political military courts’ (Art.66 GCIV) to try and punish breaches of the (security) laws which it enacted, and procedural guarantees must be followed as set out in GCIV (Arts.7175) and API (Art.75). Moreover, an occupying power should let any existing local judiciary do its job and respect its independence (Arts.54(1) and 64(1)GCIV). However, it retains the right to remove judges and reject decisions (Art.54(3) GCIV), and there is no judicial review of the occupying power’s laws and security measures. Under human rights law, by contrast, tribunals must be ‘established by law’ (usually parliamentary statute), they shall follow detailed procedural guarantees, and there are far-reaching requirements to ensure their independence – e.g. they must be able to make legally binding decisions that cannot be set aside by any non-judicial body, and their decisions must be executed. Securing the independence of individual judges among other things demands appropriate appointment procedures, adequate renumeration and service conditions and ‘guaranteed tenure until mandatory retirement age or the expiry of their term of office.’ At a general level, the obligation to provide ‘effective remedies’ for alleged human rights violations implies some sort of judicial review of domestic policies and laws for compatibility with human rights as defined in domestic and international human rights law.

Implications

What do these observations mean for closing the gaps in IHL of NIACs in situations where armed groups exercise long-term control over territories?

They first of all highlight that human rights law’s grounding in equality and democracy unsurprisingly leads this body of law to articulate duties the aim of which is to inter alia politically and legally legitimise the authority exercised by any entity that bears these duties. It implies a dynamic and participative relationship between rights-holders and duty-bearers, that constantly re-defines domestic law and policies adopted to ‘secure’ human rights of all rights-holders equally. The human rights legality standard, references to ‘fair’ trials, ‘non-arbitrary’ detention and ‘democratic societies’, as well as the notion to ‘fairly balancing’ rights when limitations clauses are applied, must be understood in this context. Thus, if an armed group is recognised as a full human rights duty-bearer, this will inevitably legitimise the authority they exercise. This will arguably be the case even if it is contended that armed groups will ‘only’ be bound by minimum core human rights obligations, or ‘only’ by ‘negative’ obligations. This is because even these obligations and their dynamic implementation in a particular (domestic) context cannot escape human rights law’s grounding in equality and democracy. To take this further, it might be advisable to only promote those armed groups as human rights duty-bearers (and thus legitimise their legal and political authority) that genuinely struggle for a better protection of human rights and political equality through representative domestic institutions.   

By contrast, the law of occupation directly aims to prevent that a political (representative) and legal relationship is established between the occupied population and the occupying power that would legitimise the exercise of authority of the latter. Instead, it poses relatively clearly defined, top-down duties on occupying powers that aim to ensure that the occupied population’s humanitarian needs are met, including by obliging the occupying power to apply and enforce existing domestic law so that basic social and economic life in occupied territories can continue. At the same time, it preserves the (political and legal) relationship of allegiance between the occupied population and the ousted sovereign government. Filling the gaps in IHL of NIACs with the law of occupation would therefore to a much lesser extent ‘legitimise’ the authority exercised by armed groups, and instead ‘freeze’ the political and legal situation whilst ensuring that basic services are provided to the occupied population. This option might be attractive to develop the law binding all armed groups, including those with ideological or economic-exploitative aims that clearly contradict respect for basic equality, and whose ‘law-making’ should not be legitimised by authorising and recognising it as part of implementing human rights duties.

Of course, these suggestions raise many further questions, first of all how the genuineness of an armed group’s intention will be determined so that they can then potentially be accepted as full human rights duty-bearers. Moreover, relying on the law of occupation may only be possible in the short term, as the numerous challenges arising from situations of prolonged occupation by states demonstrate; and armed groups might in practice not accept limits to their ‘legislative’ power under the law of occupation. Additional questions arise also in the context of governance and law-making shared between states and armed groups.

It is nonetheless submitted that these broader implications should be taken into account in the debate about how to fill the gaps in IHL of NIACs for situations where armed groups exercise control over populations, including by possibly relying on a combination of IHL, the law of occupation and human rights law. After all, this debate cannot avoid the question of how the developed law can balance the intention to ensure the humanitarian protection of all individuals affected by any armed group with the aim to only support legitimate political struggles by armed groups, i.e. struggles for a better protection of human rights and political equality through representative domestic authorities. The former would be achieved by focusing on developing humanitarian duties of armed groups, relying primarily on the technocratic, top-down approach of IHL/the law of occupation, whereas the latter is facilitated by granting armed groups far-reaching authority-legitimising rights and privileges to exercise public powers in the name of the populations under their control that come with accepting them as human rights duty-bearers.

 * Arguments made in this blogpost are further elaborated in Amrei Müller, ‘Can Armed Non-State Actors Exercise Jurisdiction and thus Become Human Rights Duty-Bearers?’, forthcoming in (2020) 20(2) Human Rights Law Review.  

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