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Mini-symposium on the book Towards a Regime of Responsibility of Armed Groups in International Law

October 7, 2020

Following the online launch of the book Towards a Regime of Responsibility of Armed Groups in International Law organised by ALMA, this blog is hosting a mini-symposium with the panellists that took part in the event. I would like to thank Katharine Fortin, Ezequiel Heffes and Emanuela-Chiara Gillard for their insightful comments and reflections. In this first post, I examine the main ideas and arguments of the book.

Background of the study

In the last decades, the majority of armed conflicts have been of a non-international character which involves the emergence of different non-state armed groups fighting against the state or against other armed groups. According to the War Report, in 2018 there was a total of 69 armed conflicts. From this figure, 51 were considered non-international. Some of the armed groups involved have gained control over territories and also over the population living in those areas. These groups have also committed serious and continuous violations of international humanitarian law and human rights law, as it has been reported by United Nations, the International Committee of the Red Cross (ICRC), and other relevant NGOs.

Against this background, the emergence of armed groups has posed several challenges to the state-centric system of international law and has generated many discussions and complex debates. One of these complex issues is the question of the possible international responsibility of armed groups: can armed groups be held internationally responsible? are there secondary norms of international law covering the actions of armed groups? There have been in fact some scholarly debates on this issue by Liesbeth Zegveld, Marco Sassòli, Jann K. Kleffner, Annyssa Bellal, Ezequiel Heffes or Veronika Bílková. However, the question of whether the violation of primary obligations of international law (in particular of international humanitarian law) entails legal consequences for armed groups remains contentious.

Why does international responsibility matter in relation to the actions of armed groups?

One of the main ideas developed in the book deals with the necessity of finding a responsibility framework for armed groups or, in other words, why a responsibility framework for armed groups is necessary under international law. There are at least three reasons that justify the necessity of such a framework. The first one is the existence of a current disconnection between primary and secondary norms.In principle,there is a consensus on the applicability of primary obligations of international humanitarian law, such as Common Article 3 of the Geneva Conventions, Additional Protocol II or customary international humanitarian law. The discussions have also addressed the possible human rights obligations of armed groups. However, there is yet no responsibility framework attached to it or so-called secondary norms for armed groups. Then, if armed groups as such have obligations, the next logical step would be that they could engage their international responsibility. As it has been pointed out by Prof. Alain Pellet, responsibility is ‘the necessary corollary of law’. Even in the Articles on Responsibility of States for Internationally Wrongful Acts, in the commentary to Article 10, the International Law Commission recognised the possibility that an insurrectional movement itself could be held responsible for its own conduct under international law. But this has not been further developed or operationalised.

In the book, I have particularly analysed the reports of UN Commissions of Inquiry and other fact-finding missions reporting about situations of non-international armed conflict. The main finding was that the majority of these Commissions, although referring to the international obligations of armed groups as such and their strategies, only considered the responsibility of these groups in terms of individual criminal responsibility. There were only two instances where the responsibility of the group itself was recognised. One example was the International Commission of Inquiry on Darfur (2005) which considered the possible international responsibility of the non-state entity for the actions of its officials, in this case, it referred to the actions of the Sudan Liberation Movement/Army (SLM/A) and the Justice and Equality Movement (JEM). The other one was the Panel of Experts on Accountability in Sri Lanka (2011) that also acknowledged the ‘organizational’ responsibility of the Liberation Tigers of Tamil Eelam (LTTE) for their duties under international humanitarian law, on top of the individual criminal responsibility. Except these two cases, the majority of the reports show this disconnection between primary and secondary norms, and this gap in the regulation.

The second reason is then linked to the insufficiency of international criminal law to address the whole range of actions of armed groups.As we know, international criminal law only covers the actions of individuals, natural persons, but not of legal persons or groups. However, crimes cannot always be attributed simply to an individual because very often there is an organisational structure behind who facilitates and encourages the commission of these violations. With regard to the crimes that are subject to the prosecution of the International Criminal Court and other international courts, not all violations of international humanitarian law are considered international crimes. Only the most serious violations of the Geneva Conventions and the Additional Protocols are subject to prosecution. On the contrary, the actions that do not reach this threshold will be left unpunished.In addition,there are other procedural barriers, including the length and high standard of evidence of criminal proceedings, or the fact that the person who committed the violation might be dead.

The third reason relates to the prevention of impunity and right to reparation of victims.The other side of the coin is the victims’ rights to reparation for the violations committed during armed conflicts. From the point of view of the victims, the suffering caused to them remains the same irrespective of whether the perpetrator is a state or a non-state actor. In fact, the difficulties identifying the individual perpetrators should not be an obstacle for providing full reparations to victims. In this regard, holding an armed group responsible as a collective entity could have the advantage of targeting the financial and organisational structure of the group. In sum, all these reasons indicate the existence of a responsibility gap which clashes with the idea of an international legal order governed by the rule of law. The lack of this legal framework of responsibility then causes damage to the requirements of legal certainty, transparency and legitimacy of the international legal order.

Which methodology could be used to cover the actions of armed groups as such?

Once we acknowledge the necessity of responsibility, the next question I address is how, which methodology could be used to cover the actions of armed groups as such? In this book, I propose to draw inspiration from the codification process of the International Law Commission in relation to the Articles on Responsibility of States for Internationally Wrongful Acts and the Articles on the Responsibility of International Organisations. In this case, the rules of responsibility of states were simplified and adapted to the characteristics of international organisations so an analogous approach could be potentially applied to organised armed groups. The idea is to identify minimum and core rules of responsibility and, in particular of attribution, and adapt them to the characteristics of armed groups. This approach would also include what I call ‘non-traditional’ sources of international law in order to interpret these principles or norms. By non-traditional sources I include, on the one hand, the reports of monitoring mechanisms such as UN Commissions of Inquiry, fact-finding missions and the special procedures of the UN Human Rights Council; and on the other hand, I also incorporate the so-called ‘practice of armed groups’, which has been addressed by the ICRC as ‘other practice’, namely, unilateral declarations, special agreements, codes of conduct and other internal rulings (ICRC, Customary International Humanitarian Law, 2005, p. xliii). It is acknowledged that reasoning by analogy has the limitation of perpetuating an existing framework of law which may contain weaknesses. Nevertheless, this method has one important advantage, that is, to keep the unity and coherence of the international legal systems.

Issues of attribution and reparations

Following this reasoning, I focus the attention on two questions: attribution and reparations. These themes are addressed extensively in the second part of the book and the upcoming posts together with my reply will provide further insights into my key arguments on these two issues. Please, follow the symposium to know more!

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