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Challenges of a responsibility regime for armed groups and how to move forward – a reply to the book symposium

October 16, 2020

I would like to thank again the three commentators, Ezequiel Heffes, Emanuela-Chiara Gillard and Katharine Fortin for their thorough analysis of my book and for raising so many interesting points that are definitely key to the study of armed groups’ responsibility in international law. I am also grateful to ALMA and Ido Rosenzweig for organising the book launch that led to this symposium. My book Towards a Regime of Responsibility of Armed Groups in International Law has aimed at bringing clarity into certain unsolved and controversial questions regarding armed groups but acknowledging that further research is required to answer all these challenging issues. In this final post, I will try to respond and engage with the main comments and questions raised in the previous posts (here, here and here).

A need for rules or just clarification?

In the second post of the book symposium, Emanuela-Chiara Gillard poses the question as to ‘what is currently missing in the analysis and practice relating to the responsibility of OAGs [organised armed groups]’. She indicates that the fact that certain bodies such as the International Law Commission (ILC) or UN fact-finding bodies did not focus their attention on the responsibility of armed groups collectively does not prove itself the inexistence of rules applicable to them. However, I believe that the indirect or implicit recognition that armed groups are responsible under international law because they are clearly bound by IHL is not sufficient. The rule of law in international law requires legal certainty and transparency in the process of monitoring and assessing violations of international law. Although I agree that the narrow focus of commissions of inquiry and fact-finding missions could be due to the mandates given to them, these and similar bodies should be more consistent in the task of establishing a clear link between the alleged violations committed and the group to whom these violations are attributed. More importantly, there seems to be a current disconnect between their main findings, on the one hand, and the conclusions and recommendations section, on the other hand. This is in part due to their mandates, but it is also due to the lack of clarity as to what legal framework of responsibility is applicable to armed groups. And here is where I argue that certain guidelines or rules should be provided.

Membership, civilian wings and attribution of conduct

In the previous posts, both Emanuela and Katharine Fortin addressed different issues related to membership and attribution of conduct to armed groups. Before going into their comments and critiques, I would like to point that attribution of conduct to armed groups for the purpose of establishing their international responsibility has received scare attention by the scholarship and the practice, and I might not have full answers in this respect but potential proposals. Katharine has raised the question of how to conceptualise armed groups for the purposes of attribution and whether the civilian wings could also be included as part of this notion. In fact, one of the main difficulties in this study was the own definition of armed group, and in particular whether we should only consider the military wing or whether we consider both the military and the political wing. It might be noted that I follow a narrow approach because I stick to the definition of armed group of the ICRC in How Does Law Protect in Law? according to which ‘the term organised armed group refers exclusively to the armed or military wing of a non-state party to a non-international armed conflict’. However, I do acknowledge that the different roles within an armed group are not always easy to distinguish and that often one member can be performing both military and political or administrative functions at the same time. For example, in the case of the Sudan People’s Liberation Movement/Army (SPLM/A), the Commander in Chief was in charge of the determination of the political and military objectives and the officers of the SPLA were also acting as civil and military administrators. As regards the FARC-EP, every military unit was also considered a political cell and every commander had both political and military responsibilities. In practice, it is sometimes very difficult to make a clear distinction between both branches and the line seems to be blurred. As Katharine mentioned in the book launch, rebel governance studies could be insightful in providing information about the different roles played within an armed group.

In the book, I propose to apply three potential rules of attribution by analogy with the common rules of attribution of states and international organisations (Chapter 4 of the book). The first one is the attribution based on the conduct of ‘organs’ or ‘agents’ of armed groups. In the process of studying the possible organs or agents of armed groups I enquired whether the definition of membership could have any relevance for my research. Accordingly, I examined the notion of membership in the ICRC DPH study but concluded that this definition of membership was too narrow to reflect the full spectrum of members of armed groups. I particularly observe that other supportive roles such as logistics, providers of services, training, or planning activities at the highest level of the organisation could also be considered as acting on behalf of the armed group if this was done on a regular and permanent basis because this was clearly contributing to the armed struggle even if it was in an indirect way. Therefore, as Emanuela also mentions, the notion of membership does not have to be the same for the purpose of determining the legitimate military targets (as this was the aim of the ICRC DPH study) than for attributing international responsibility. However, one common element would be the necessity that the alleged member performs a function on a permanent basis.

The second proposed rule is the attribution based on the conduct of other individuals or groups that are under the direction and control of the armed group. This rule could be potentially applied to those civilians who do not belong to the military structures of the armed group and do not perform their regular functions but take part in the conflict in specific moments on behalf of the armed group. This rule should also consider the organisational structure of the armed group because this could mean a different standard of direction and control, specifically for decentralised groups. A third possible rule of attribution could be the acknowledgment of the conduct as its own by the group as long as the acknowledgement is clear and unequivocal.

The relevance of armed groups’ practice

Another aspect tackled in the book deals with the perspectives of armed groups on attribution and reparations and how to evaluate this practice. In his post, Ezequiel Heffes wonders about the practical consequences that this may have when dealing with international responsibility. In particular, he asks whether ‘the “non-practice” (i.e. failure to act in a certain way) could also be a relevant factor to consider’ and whether not including a type of reparation ‘may suggest that these entities do not generally have the capacity (either knowledge or resources) or interest to actually adopt it’. In the book, I highlighted the importance of taking the views of armed groups into consideration as the counterparties in a non-international armed conflict. In fact, other scholars have also pointed out the relevance of armed groups’ practice in order to analyse their practical capabilities for complying with international humanitarian law obligations. For instance, Marco Sassòli has claimed that ‘If we want to revise IHL in a certain area, we have to discuss with the actors, which, in the area of non-international armed conflicts, include the armed groups’ (p. 18). Or more recently, Annyssa Bellal has discussed the views of armed non-state actors on the conduct of hostilities in urban settings. However, I agree with Ezequiel that one must be careful in assessing armed groups’ practice.

I have actually pointed out some of these concerns in the book. Firstly, when assessing the practice of armed groups regarding reparations, I explained that it was too early to conclude the existence of a solid and ‘general practice’ (p. 192). In particular, I have analysed this practice for the purpose of assessing any possible contribution to customary international law (if we consider any potential role of non-state armed groups in this process). Accordingly, to be regarded as ‘general practice’, the book argues that a substantive amount of practice and opinio juris of armed groups which represents at the same time different organisational structures of armed groups and different geographical regions is required. Secondly, I indicated that at least there seemed to be stronger evidence of the acceptance of the duty of armed groups to restitute assets and properties which was derived from a number of peace agreements between states and armed groups and from certain codes of conduct. In the end, what the book was trying to prove is that, in practice, armed groups do have the ability to provide certain forms of reparations. Nevertheless, the consistency of such practice is something that deserves further research. Moreover, by analogy with the analysis of the capabilities of armed groups to comply with IHL, a similar understanding can be applied for addressing their capabilities in the provision of reparations.

Reparations and armed groups

As for the question of reparations and the duties of armed groups, Emanuela refers to the multiple challenges that exist. She rightly points that this is a main concern not only for armed groups’ responsibility but also for states since ‘instances of reparations actually being made to individual victims of violations of IHL remain regrettably extremely rare’. In fact, I also mentioned in the book that in relation to violations of IHL, there is no institutionalised mechanism through which victims can claim their rights, not even for violations committed by states. But probably we could make use of transitional justice mechanisms to cover this gap and consider both responsibilities, that of states and armed groups. Emanuela also suggests taking inspiration from creative approaches that are being developed in relation to the sanctions imposed to certain armed groups, such as tracing or freezing assets. Likewise, I have referred to similar approaches, namely the recovery of illegal assets. This was the case of Peru which devoted a portion of assets recovered from corruption; the Philippines with monies recovered from the Marcos estate; or Colombia with assets held by the paramilitaries. Other possibilities could include the financial contribution of armed groups to specific compensation funds or even the Trust Fund of the ICC.

The main proposal of the book focuses on considering a broad definition of reparations by not only looking at financial compensation but also moral reparations and guarantees of non-repetition (Chapter 5 of the book). The importance of moral reparations and the possible contribution by non-state armed groups has already been addressed by Ron Dudai, Luke Moffett and Nicolás Carrillo Santarelli. In this sense, the book suggests that armed groups could play a crucial role in the provision of symbolic or moral reparations, including the acknowledgment of facts, the offering of public apologies, and other memorials and official ceremonies (p. 187 – 189). However, moral reparations should be considered complementary to other forms of reparations. In addition, guarantees of non-repetition could be an essential part of reparations in the form of preventive measures to avoid the commission of future violations of IHL. These commitments would need to be accompanied by a monitoring system in place that could be similar to the one provided by Geneva Call.

Humanitarian engagement and responsibility

Lastly, another issue raised by Ezequiel was the potential relationship between compliance and responsibility. He wonders whether there are ‘some correlations between the practice of those groups that are open to engage on humanitarian norms and those that have both claimed responsibility for violations of IHL and implemented measures of reparations’. Although I have not analysed this particular question in the book, I do believe there might be certain correlation and that those armed groups which have already engaged in humanitarian dialogues would be more willing to accept their responsibility and repair the harm done. In particular, in the book I examined the armed groups that engaged in peace agreements with the corresponding state, which in most cases were related to armed groups that wanted to transition into some form of political party (p. 183 – 187). Another issue linked to this question is the fact that centralised types of armed groups are more likely to engage in successful peace agreements than decentralised armed groups because the leadership have the ability to enforce the necessary rules on their ranks. Therefore, this is also something to bear in mind if we want to engage them in reparation provisions or similar commitments.

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