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Organizing Rebellion Symposium: Translating the Organization Requirement into the Operational Context

September 17, 2019

Laurie R. Blank is a Clinical Professor of Law; Director, Center for International and Comparative Law; Director, International Humanitarian Law Clinic, Emory Law School.

I am delighted to have the opportunity to contribute to this engaging online symposium on Dr. Tilman Rodenhauser’s impressive new book, Organizing Rebellion.  Tilman’s analysis of the notion of non-state armed group and the concept of organization is timely, sophisticated and remarkably thorough, resulting in what will no doubt be a go-to resource for many years to come. 

The first main section of the book provides a detailed analysis of the notion of organized armed group in the law of armed conflict (LOAC), primarily for the purpose of understanding and assessing the organization component with regard to classification of non-international armed conflict.  After a careful look at a range of approaches to this question, including the development of detailed indicia and factors through the jurisprudence of international and hybrid tribunals, Tilman offers what he terms a “strictly functional interpretation” based on three criteria drawn from treaty law, jurisprudence and state practice: an organized armed group must be a 1) collective entity that 2) has the ability to engage in sufficiently intense violence and 3) the ability to ensure respect for basic humanitarian norms.  Of course, the interpretation and application of these criteria or conceptual categories is where the interesting questions and challenges lie, but at a minimum, this approach is sober and rational — and extremely useful — on first glance.

At the same time, however, the analysis throughout the LOAC section of the book appears best situated in the hands of an external actor assessing the existence and nature of a given conflict once the conflict is underway or completed — generally in the context of a tribunal, court or commission of inquiry.  The fact-intensive nature of an examination of the characteristics of an organized armed group and its capabilities and organizational and leadership style are best suited to these enterprises.  But adjudicatory or fact-finding bodies are not the only entities that seek to and must assess the existence and nature of a conflict, raising the question of who argues and advocates, and assesses and asserts positions regarding conflict classification, and in what circumstances. 

Indeed, states faced with growing violence, attacks and other threats demanding forceful responses must determine not only the available and best options for addressing those attacks and threats from a strategic, operational and tactical perspective, but also the relevant legal parameters for such responses.  To do so, the state must therefore assess and determine the applicable law — that is, determine whether the situation constitutes a non-international armed conflict, such that LOAC applies, or does not yet rise to that level, in which case the state is operating under the ordinary law enforcement paradigm.  The difference between the two legal regimes is stark, particularly with respect to the authority to use force and to detain, and highly consequential for planning and execution of any operations.

Reading Tilman’s deeply thoughtful and careful examination of the criteria and methods for identifying an organized armed group for purposes of the identification and classification of non-international armed conflict prompted, for me, the question of who assesses or asserts the existence of a non-international armed conflict? And when, and based on what standards and what sources of information? 

Translating the notion of organized armed group — or the “organization” criteria — into the operational context thus raises a number of interesting questions and challenges. First, consider from the state’s perspective at the start or early stages of violence the three basic criteria Tilman presents as the core investigation regarding the organization criteria. A key question is how much the state needs to know about the workings of a non-state group to determine if it satisfies this basic framework to constitute a party to an armed conflict (which then, of course, is determinative not only for the existence of an armed conflict but also for essential issues such as status-based targeting, detention without charge, and so forth).

The state will, of course, have direct information regarding the intensity of the violence, which is a separate criterion for non-international armed conflict altogether.  With respect to the organization criterion, and the three factors Tilman highlights, the state will see the group’s capacity to engage in violence and will likely see or have significant insights into the group’s ability to launch concerted military operations.  In contrast, however, a state may not have any information — or access to information — about the group’s ability to ensure respect for basic humanitarian norms or even the group’s collective structure, in contrast to an external investigative body or tribunal during or after the conflict, which will have or seek access to the group and the community surrounding it in order to gather and assess such information. 

As a result, it is worth considering what are the appropriate presumptions regarding a state’s determination of the existence of non-international armed conflict and, the more specific sub-question, whether those fighting against the state constitute an organized armed group for the purposes of such conflict classification.  Is or should the state’s determination — including underlying assessments of any facts regarding its adversary — be accepted as the starting point for any analysis? Is there a presumption that the state’s approach is reasonable? Is there a reasonableness threshold for the state’s determination to be taken as presumptively valid? Or could the state be held to a different post hoc determination regarding the applicable law and thus its adherence to the law?

Consider how this particular set of questions might play out.  A state faces violence and unrest and in the course of its response, it reaches a determination that its adversary is sufficiently organized to qualify as a party to a conflict and the situation constitutes a non-international armed conflict.  The state then conducts its operations against the adversary based on the applicability of LOAC.  Fast forward months or even years and now a court or tribunal — national, regional or international — must address the jurisdictional question of whether an armed conflict existed at the time of the relevant conduct charged.  If the tribunal were to find that the adversary was not sufficiently organized to constitute an organized armed group and therefore no non-international armed conflict existed, either at all or at a particular time, what would be the effect on the state’s real-time determination to the opposite effect and the state’s conduct based on LOAC? What might seem to be the natural conclusion to such a finding — that the state was incorrectly applying LOAC and instead will be bound by and held accountable according to international human rights law after the fact — presents a host of challenges.

First, if a state’s assessment were reasonable at the time and based on the information available to the state, such assessment should be deemed presumptively valid.  Any other approach would divert from LOAC’s consistent reliance on the reasonable commander and the reasonableness of decisions at the time they were taken.  A state would be unable to reach a necessary determination of law applicability if it constantly feared that future access to presently inaccessible information, or new assessments of existing information, would effectively invalidate and even criminalize its actions based on currently available information and analyses.

Second, and equally problematic, in the absence of a presumption that a state’s reasonable analysis should stand, states will be forced to err on the side of not classifying situations as armed conflicts at all for fear of being “overruled” later on.  As a consequence, states may be forced into a space where they must respond to violence and other threats, but only within the international human rights law paradigm, no matter how intense the violence or how organized the adversary, because they will not be able to rely on their real-time assessments for future determinations of law compliance and accountability.  Although on first glance such a result might seem more protective, because international human rights law is significantly more restrictive with regard to the use of force and detention, the ultimate effect will be to weaken the international human rights law paradigm by stretching it to allow for operations otherwise governed by LOAC because states will continue to respond to threats as needed and the human rights law paradigm will be forced to adjust accordingly.  The net effect is to undermine protections, by leaving human rights law less equipped to serve its core purpose and potentially stretched beyond recognition over time.

A methodology for identifying and classifying armed conflict, particularly non-international armed conflict, is essential.  Allowing states to ignore the existence of a conflict — and thus the applicability of LOAC — or to be overly willing to present operations as conflict so as to harness the authorities of LOAC, is highly problematic and goes against some of the central tenets of the 1949 Geneva Conventions framework.  The questions and concerns raised here are in no way a criticism of the task and tools of conflict classification; indeed, as I and co-authors have written elsewhere (here and here), conflict classification is foundational and fundamental to the effective application, implementation and enforcement of LOAC.  But as we explore and sharpen these systems and methodologies, it is worth considering how they will be affected by, and will affect, the perspective of the state engaging in operations in real-time and having to make and act in accordance with such classification determinations in the moment.

Organizing Rebellion Symposium: a Multi-faceted Study of Armed Groups and International Law

September 17, 2019

Up on Opinio Juris, you can find latest post by Katharine Fortin, ‘A Multi-Faceted Study of Armed Groups and International Law‘ in our co-hosted book symposium on Organizing Rebellion. Check it out here.

Organizing Rebellion Symposium: Sex and Crime*

September 16, 2019

Marco Sassòli is Director of the Geneva Academy of International Humanitarian Law and Human Rights and professor at the University of Geneva.

1. Introduction

This contribution has nothing to do with sex and only partly deals with crimes, but mainly reacts to Tilman Rodenhäuser’s book. I read Tilman Rodenhäuser’s book with great interest, full of admiration for the wealth of research and nuanced argument lines on a subject, which until now, has not received sufficient scholarly attention. However, I also found it challenging, particularly on account of my role as a discussant of the book, and the associated task to disagree with some positions. Indeed, in my main field of expertise, international humanitarian law (IHL), I tend to agree with everything the author writes. Nevertheless, with a little more effort, I found an aspect that could deserve future research, as well as a question on a detail. Regarding international human rights law (IHRL) as well, I agree with the main argument that armed groups must be bound by human rights (although I am not as persuaded as the author that this is already the case, particularly, beyond armed groups exercising quasi-governmental authority in defined territory). Further, his claims about crimes against humanity and genocide, equally seem reasonable to me. My main concern (which could be purely terminological) with the book is that it  affirms – without detailed discussion – existence of armed groups in the absence of armed conflicts.

2. Which are the “fundamental” rules of IHL that an armed group has to be able to respect?

The author aptly suggests, that the usual indicators for the degree of organization of an armed group used by jurisprudence, lead to three genuine conditions that must be fulfilled cumulatively: (1) Existence as a collective entity; (2) Possession of the capacity to engage in sufficiently intense violence; and, (3) The ability to ensure respect for “fundamental” (pp. 64, 87) or “basic” (pp. 88, 315) humanitarian norms. The third condition is obviously the decisive one. I fully agree that it is useless to claim that groups are bound by rules they are unable to respect. I have explained elsewhere why I think this necessitates a serious reality check on whether rules of IHL of non-international armed conflicts (NIACs), and their increasing convergence – qua customary law or analogy – with those of IHL of international armed conflicts (IACs), are actually realistic for armed groups (Marco Sassòli, “Taking Armed Groups Seriously: Ways to Improve Their Compliance with International Humanitarian Law”, The Journal of International Humanitarian Legal Studies 1 (2010), pp. 15-20). Considering that what counts, is that the group is able to respect “any kind of rules”, (p. 88) may however, expand the scope of application of IHL of NIACs considerably. This though, can be problematic, if one believes – as I disagree, on the contrary – that this framework contains “authorizations”.

It is nevertheless regrettable that Rodenhäuser remains very vague about which rules are “fundamental”. He stresses that an armed group does not need “the capacity to implement every single rule of applicable IHL” (p. 88). He explains: Firstly (p. 41), he follows the ICRC Commentary position on the obligation to collect and care for the wounded and sick under Common Article 3. He insists that this obligation, which most armed groups are unable to fully comply with, demands from them “only what can be required under the given circumstances, taking into consideration factors such as the security conditions and available resources”. In this regard, I am not convinced that an armed group engaged in hit-and-run operations, without territorial control, is able to comply with anything else – than not to kill such a wounded person. It is debatable whether this can be considered sufficient to comply with the obligation to collect and care for her. Secondly (p. 42), Rodenhäuser mentions the requirement of Common Article 3 that armed groups may not pass “sentences [or carry] 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.” He does away with such judicial guarantees, which no group without stable control of territory and quasi-governmental authority can respect. This he achieves, by mentioning correctly, that every armed group is able to comply with the provision by neither sentencing, nor executing anyone. This solution only works, if one does not consider – like the ICTY and the ICRC Customary Law Study – that command responsibility in NIACs includes the responsibility of commanders to punish members who have committed violations, in order to avoid responsibility for crimes committed by subordinates. Or could there be punishment without a sentence? Additionally, Rodenhäuser fails to explain how a group can respect the far-reaching positive human rights obligations he considers as binding upon armed groups controlling territory (pp. 159-192) – without trying anyone.

The author writes, that the threshold of organization an armed group must fulfil, in order to fall under customary IHL of NIACs, is the same as that required for Common Article 3. It would therefore be interesting and necessary, to operationalize the condition that an armed group must be able to ensure respect for “fundamental” humanitarian norms. This could be achieved by going over the 136 customary rules of the ICRC Customary IHL Study, applicable – according to the ICRC and Rodenhäuser – to all NIACs. Such an enquiry would be important to identify those rules, that are sufficiently “fundamental”, of which an armed group’s inability to respect, would mean they are not organized. Admittedly, most customary rules are formulated by the ICRC in a way that makes them adaptable to the capacity of the addressee (by using terms such as “feasible” – rules 15-22 – or “to the degree practicable”). However, here are a few examples of rules, with which many armed groups may have difficulties:

It would have been interesting to read whether the author considers that these are not fundamental; or, how he considers every armed group could respect them; or perhaps, whether he considers that a group unable to respect them cannot be a party to a NIAC.

Incidentally, Rodenhäuser suggests a possible way out of the dilemma of either absolving an armed group from any IHL obligations (if no organized armed group is involved no NIAC exists), or considering that certain rules of customary law are not “fundamental”.  Astonishingly though, this is suggested only for IHRL (pp. 147-148), and not for IHL; that is, to apply a sliding scale where an armed group that is better organized and has more stable territorial control, would be obliged to comply with rules more similar to the full panoply contained in IHL of IACs (and largely claimed to apply to NIACs qua customary law). In the future someone may suggest a categorization of armed groups into typical categories. Each category would be covered by different sets of customary rules that are so “fundamental” that an armed group that cannot respect them could not be a party to a NIAC. More importantly, these would be rules that armed groups of each category must respect. Interestingly enough, Rodenhäuser suggests (pp. 159-209) such categories for the purpose of determining applicable IHRL obligations – but not for IHL.

3. IHL and international criminal law on war crimes

Finally on IHL, a small detail aroused my curiosity. On four occasions Rodenhäuser writes that the organizational requirements for armed groups behind war crimes are “similar” to those for an armed group to be party to a NIAC (pp. 6, 8, 215, 216). For reasons he explains well (p. 215), they must in my view, necessarily and inherently, be exactly the same. It would be interesting to know whether the author considers there to be any differences.

4. Must everyone respect IHRL?

On IHRL, the argument is more innovative, sometimes militant, but I agree with the basic proposition that armed groups are bound (or should at least be bound) by IHRL. Rodenhäuser lists (pp. 121-159) good arguments for this conclusion. However, to see IHRL as consisting of individual entitlements, does not solve the question on who has to respect those entitlements. Although I have an entitlement not to be physically harmed, I do not think a polar bear that wounds me violates IHRL.

I find the following categorization of armed groups, both thoughtful and useful: (1) groups exercising quasi-governmental authority in defined territory; (2) groups exercising de facto control over territory and population; and, (3) groups not controlling territory and population. However, in a book on the organization of armed groups, I would have expected – at least for the third category – some thoughts about the minimum level of organization an armed group needs to be bound by IHRL (indeed, as the author insists that it is not the same as the one he so well discusses for IHL: pp. 7, 8). Does the author consider that everyone is bound by the obligation to respect (by opposition to protect and fulfil) “fundamental” rights of international human rights law, however disorganized an entity is? If so, the author should say so, and thus render the question asked in the title of his book irrelevant for IHRL.

5. Armed groups in the absence of an armed conflict?

A more fundamental doubt I have is whether armed groups exist without armed conflicts. Rodenhäuser insists they can (pp. 118, 181). Depending on how one sees the end of application of IHL after a NIAC, I agree that armed groups may exist even after an armed conflict has ended. For sure, even in the absence of an armed conflict, a group is able to create a context in which individuals can commit crimes against humanity or genocide; or, it may even commit such crimes, itself. I also admit that a group may have human rights obligations even in the absence of an armed conflict. I do not see, however, the utility to designate such group as “armed”. Our divergence may be terminology. Nevertheless, in the absence of an “armed” conflict, a group does not need any “arms”. Are there armed groups without arms? Why would “armed” groups have other obligations as compared to other groups? Second, and more importantly, in the absence of armed conflicts, it is much more difficult to argue that a group has obligations under international human rights law. Indeed, as Rodenhäuser correctly explains in his IHL part, States have inherently given armed groups functional legal personality necessary to be bound by IHL obligations, which they have addressed to them. From there, it is much easier to argue that limited legal personality also covers IHRL obligations, which are necessary to fill gaps, correctly identified in the book. Such would exist, if only IHL applied. Third, without any (past) armed conflict, the thoughtful explanations by Rodenhäuser (pp. 135-143, 160-163, 182-184, 193-198), on why the responsibility of the territorial State is insufficient, become much-less convincing. I would argue that in the absence of an armed conflict, the territorial State must and can protect human rights against an “armed” group. It may not tolerate that a group, which does not violently resist the reestablishment of governmental authority, exercises quasi-governmental authority or de facto control over territory and population. Fourth, I think it is precisely when it comes to their organization (including that necessary under IHRL), that armed groups involved in an armed conflict differ considerably from groups that are not armed – like political parties, criminal bands, clans etc.

  • This title was provided by Professor Sassòli in response to a request for “a catchy title”!

Organizing Rebellion Symposium: Four Points to Conceptualize Armed Groups under International Law

September 16, 2019

Dr Tilman Rodenhauser holds a PhD from the Graduate Institute of International and Development Studies in Geneva. He is currently Legal Adviser at the International Committee of the Red Cross (ICRC), and worked previously with the German Red Cross, DCAF, and Geneva Call. The views expressed on this blog are those of the author alone and do not engage the ICRC, or previous employers, in any form.

Looking at armed groups in the conflicts and crises of the past decade, the picture we see is increasingly messy. On the one extreme, there is a multiplication of groups. Researchers say that more armed groups have emerged in the last six years than in the previous six decades. For instance, McQuinn reports that during the conflict in Libya in 2011, 236 different ‘revolutionary brigades’ operated in the city of Misrata alone. In Syria, the Carter Center estimated that over the first 2.5 years of the crisis, ‘approximately 4,390 armed units and military councils’ operated in the country. Armed groups form alliances, merge into one group, or splinter – at times within the territory of one State, at times across borders. On the other extreme, in places such Yemen, Syria, Iraq, Libya, and Ukraine, groups consolidate power in ways effectively resembling States, exercising stable control over territory and population.

For military lawyers, humanitarian organizations, human rights lawyers, or prosecutors at national and international tribunals, this increasingly complex reality makes it difficult to answer elementary legal question: when is an armed group sufficiently organized to qualify as a party to an armed conflict? Do armed groups have human rights obligations? If yes, which ones? And can armed groups instigate crimes against humanity or genocide?

A comprehensive analysis of these questions is found in my book ‘Organizing Rebellion: Non-State Armed Groups under International Humanitarian Law, Human Rights Law, and International Criminal Law’, recently published with Oxford University Press. As a way of introducing this symposium, I will set out the four key takeaways from the book.

  1. International law does not provide a ‘one-size-fits-all’ analysis or framework for armed groups

International law does not provide one single definition or framework for non-state armed groups to be an ‘international legal person’ vested with a fixed set of international obligations. If we want to know whether a group is a party to an armed conflict governed by international humanitarian law (IHL), bears human rights obligations, or if its members can be criminally responsible for certain international crimes committed on behalf of the group, we have to examine the group in light of the body of law we are looking at. Having obligations under one field of international law, or being able to commit one type of international crime, does not necessarily mean that a group will also bear obligations in another field of law. Concretely, while an armed group may become party to an armed conflict, bound by IHL, and its members liable for war crimes, it is a completely different question whether the same group is also obliged to respect, protect and fulfil human rights in territory under its control. Likewise, a group able to draw up and implement an ‘organizational policy’ behind crimes against humanity may not necessarily be sufficiently organized to become a party to an armed conflict.  

2. Three criteria define whether an armed group is sufficiently organized to become party to an armed conflict

When protest or violence escalate – as was repeatedly the case in the Middle East and parts of Africa in recent years – lawyers have to determine when such violence amounts to an armed conflict. Under contemporary IHL, two criteria determine the existence of a non-international armed conflict under article 3 common to the four Geneva Conventions and customary IHL: there needs to be sufficiently intense violence between sufficiently organized parties. In my book, I examined the second of these criteria, and identified three basic criteria to determine whether a group meets the organization criterion under IHL. These criteria apply irrespective of whether the group is a traditional liberation movement, a group labelled ‘terrorist’, a coalition of groups that merges into one armed group, a group operating in cyber space (Organizing Rebellion, pp 104-108), or a group operating across national borders (Organizing Rebellion, pp 96-104).

  • First, the group needs to be a collective entity. In my view, what turns a loose network of individuals into a legally relevant collective entity is a vertical or horizontal command structure. This criterion appears very simple, but especially if we look at alliances of armed groups it is often difficult to establish.
  • Second, the group needs to have the capacity to engage in sufficiently intense violence, which requires manpower, logistics, and the ability to coordinate operations.
  • And third, any party to an armed conflict needs sufficiently developed command or disciplinary structures to implement at least basic humanitarian obligations. This does not mean that the group respects IHL in practice; however, the group would need to have the ability to respect fundamental humanitarian norms.

3. Possible (future?) human rights law obligations depend on the group’s capacity and the circumstances it operates in

If an armed group establishes quasi-governmental structures in a defined territory, who is responsible for protecting and fulfilling the rights of those living under the armed group? As today’s international human rights treaty system is focused on State obligations, in too many contexts the sole focus on States as duty bearers leaves the human rights of thousands, if not millions, unprotected. In the book, I do not aim to draw a clear conclusion on whether armed groups are legally bound by human rights law. Instead, I present contemporary practice and examine a variety of legal questions that arise.

Different scholars have suggested that possible human rights obligations of armed groups are best understood as existing on a spectrum. In my view, on this spectrum obligations should depend on the circumstances in which the group operates and the group’s capacity. Based on this assumption, the book examines possible obligations of three broad categories of armed groups: (1) groups exercise quasi-governmental authority in defined territory – such as the Hamas in Gaza or the Islamic State in parts of Iraq and Syria; (2) groups exercising de facto control over territory and people, ranging from different groups in the Democratic Republic of the Congo to smaller groups in Libya or Yemen, and (3) armed groups without territorial control, which are particularly relevant when operating in failed states and outside armed conflicts.

4. International criminal law can address crimes committed by various armed groups

Most crimes currently being prosecuted before the International Criminal Court have been committed by members of armed groups. Under international criminal law, an essential preliminary question with regard to these crimes is at what point the involvement of the armed group satisfies the collective entity involvement criterion as required for most crimes. The type of armed group that can be involved in an international crime cannot, however, be determined in the abstract. It depends on the definition of the crime.

With regard to war crimes, for example, the degree of organization of the armed group involved is similar to the organization threshold defined in IHL. Unless there is an armed conflict, there cannot be a war crime.

The issue presents itself differently with regard to crimes against humanity. In the Rome Statute, crimes against humanity are defined as certain acts committed as part of a widespread or systematic attack against any civilian population, and such attack must be – among other things – ‘pursuant to or in furtherance of a State or organizational policy’ (article 7(1)(a)). I argue that determining what constitutes an organization behind a crime against humanity depends essentially on the relationship between the organizational policy behind the attack and the underlying acts. In short, there are three ways in which a collective non-State entity may be involved in a crime against humanity:

  • First, the collective entity could encourage the attack against a civilian population merely by deliberately abstaining from action. This exceptional case may only be pertinent, however, if the collective entity is otherwise obliged and able to protect the targeted population (arguably, if it has State-like capacities).
  • Second, an armed group could ‘actively promote or encourage’ the attack without being directly involved in the commission of the underlying criminal acts. In that case, the underlying criminal acts (i.e. torture, rape, murder, etc.) would not necessarily be committed by members of the group.
  • Third, and this is the most common case in practice, the entity behind the organizational policy also implements the attack against a civilian population by organising and directing the underlying crimes, normally committed by members of the group.

5. You want to know more? Follow the symposium and read the book!

I am truly honoured and grateful to all experts taking part in this blog symposium. I have read your work when writing the book, engaged with your arguments, and learned from you; you are among the scholars I admire most in your respective disciplines. I look forward to reading your views.

I am especially grateful to Katharine & Ezequiel from Armed Groups and International Law, and Jessica from Opinio Juris, for organizing this symposium. Merci beaucoup!

Armed Groups and International Law and Opinio Juris Joint Book Symposium on Organizing Rebellion by Tilman Rodenhäuser

September 16, 2019

Over the coming ten days, along with Opinio Juris, we are happy to co-host a book symposium on Tilman Rodenhäuser’s book, Organizing Rebellion: Non-State Armed Groups under International Humanitarian Law, Human Rights Law and International Criminal Law, published by Oxford University Press. In addition to comments from Tilman himself, we have the honor to hear from this list of renowned scholars and practitioners: Marco Sassòli, Laurie Blank, Daragh Murray, Melanie O’Brien, Mathias Holvoet, Sareta Ashraph, and Adejoke Babington-Ashaye. Ezequiel Heffes and I will also be contributing posts!

From the publisher:

The number of non-state actors, in the past not accountable for committing international crimes or violating human rights, is proliferating rapidly. Their ways of operating evolve, with some groups being increasingly fragmented and others organizing transnationally or in cyber space. As non-state armed groups are involved in the vast majority of todays armed conflicts and crisis situations, a new and increasingly important question has to be raised as to whether, and at what point, these groups are bound by international law and thereby accountable for their acts.

Breaking new ground in addressing international human rights law, international criminal law, and international humanitarian law in one swoop, Rodenhäusers text will be essential to academics and practitioners alike.

As this is a co-hosted symposium, half of the contributions will be found here at Armed Groups and International Law and the other half at Opinio Juris. We will try to cross-link, but keep an eye on both websites to follow along. We look forward to the conversation!

Understanding ISIS’s crimes in Kocho: a demographic analysis

August 15, 2019

In 2018, Dr. Valeria Cetorelli and I established the Yazidi Victims Demographic Documentation Project with the objective of identifying every victim of the attack on the Yazidi community of Sinjar by the armed group, the Islamic State of Iraq and Al-Sham (ISIS). By combining our two disciplines, we hoped to establish a reliable dataset that would have multiple short, medium, and long-term uses. This included assisting in identification of remains in mass graves, and providing reliable information for use in planning for and prioritisation of members of the Yazidi community, including provision of counselling, increased medical interventions, and gender- and youth-specific needs. Significantly, we envisaged the dataset providing information of high probative value for use in criminal prosecutions before national, regional, and international courts and tribunals. Consequently, we took a similar methodological approach to the one previously used by the Demographic Unit of the Office of the Prosecutor in the International Criminal Tribunal for the former Yugoslavia.

On 10 July 2019, the Project published its first paper, a demographic analysis of ISIS’s attack on Kocho, in which we sought to answer the following questions:

  • How many victims of ISIS’s attack on Kocho can be identified by name, and what is the likely number of victims who remain uncounted?
  • What gender and age are the identified victims, and what types of violations have they suffered?
  • Do the results of the demographic documentation confirm the findings of testimony-based documentation?

The purpose of this blog post is to present the main findings of the report, on a date exactly five years after the Kocho attack. Before presenting them, we first briefly set out details of the attack.

ISIS attack on Kocho

On 3 August 2014, ISIS attacked the Sinjar region of northern Iraq, targeting the Yazidis, a millennia-old and oft-persecuted religious community. After controlling the main roads and strategic junctions, ISIS set up checkpoints and sent mobile patrols to search for Yazidi families. Within hours, Yazidis who fled too late or who had remained in their villages, found themselves encircled. Almost all villages were emptied within 72 hours of the attack, with the exception of Kocho village, which was not emptied until 15 August 2014. (See pp. 7-13 of the paper for a detailed overview of the ISIS attack on Sinjar, and of the events in Kocho between 3 and 15 August 2014).

On 15 August 2014, ISIS ordered Kocho’s residents to gather in the village school. Women and younger children were forced upstairs, while men and adolescent boys were kept on the ground floor. ISIS berated the Yazidis for their adherence to their religion, and gave them a choice: convert to Islam or remain as Yazidis in which case they would have to leave the Sinjar region, relinquishing their possessions. The Yazidis decided not to convert. ISIS fighters then ordered the men and older boys to surrender their valuables, before taking them out of the school in groups. Survivors described being shoved into vehicles that were driven short distances, though not all to the same location. ISIS fighters pulled the men and older boys from the vehicles and forced them to kneel or crouch on the ground before shooting them. Since ISIS was ousted from Kocho in May 2017, at least eleven mass graves holding human remains have been discovered in and around the village.

After most of the men and older boys had been taken out of the school, fighters ordered the women and younger children downstairs where their valuables also were taken from them. ISIS fighters began to select unmarried girls, mostly those between the ages of 13 and 16, and took them away. The remaining women, girls and boys were forced into vehicles and taken to the Solagh Technical Institute, closer to Sinjar town. There fighters continued to take away adolescent girls, as well as boys who were over the age of seven. Testimonies suggest that the boys were taken to ISIS training camps, where they were forcibly trained and later made to fight. In the early hours of 16 August 2014, ISIS fighters separated women deemed to be past childbearing age. After ISIS lost control of the area, a mass grave was uncovered in the grounds of the school. After sunrise on 16 August, fighters loaded the surviving residents of Kocho – all women and children – into trucks and buses and transported them to holding sites deeper inside ISIS-controlled territory where it is alleged that they were registered, sold under ISIS’s system of sexual enslavement, and suffered a range of mass atrocity crimes during their captivity. The fate and whereabouts of thousands of Yazidis are still unknown.

Many of the crimes committed against the Yazidis by ISIS have been documented by the United Nations, NGOs, and the news media. In 2015 and 2016, the United States Holocaust Memorial Museum and the United Nations Independent International Commission of Inquiry on Syria released separate reports determining that ISIS was committing genocide, as well as crimes against humanity and war crimes, in its coordinated assault on the Yazidis of Sinjar.

Much of the world’s understanding of what happened comes from testimonies of survivors, the majority of whom are female. Some, including 2018 Nobel Peace Prize winner Nadia Murad, spoke out publicly while many others gave their accounts confidentially to a range of documentation entities. Earlier this year, the excavation of Kocho’s mass graves began. Yet, five years on, a full understanding of the scale of ISIS’s crimes against the Yazidis, and the identity of all the victims, remains unknown. It was to tackle this information gap that Dr. Valeria Cetorelli and I established the Yazidi Victims Demographic Documentation Project.

Demographic Analysis of ISIS’s attack on Kocho

The project’s first paper conducted a demographic analysis of ISIS’s attack on Kocho. It analysed data from two independent sources (p. 13). The first was a list of victims gathered by trained Yazidi enumerators, primarily from close family members and occasionally from more distant relatives, friends and neighbours, in camps for internally displaced persons in the Kurdistan Region of Iraq. The second source was a list of victims compiled by one of the few Kocho community leaders who survived the attack. Information on victims’ status – dead, missing, or rescued – was updated to August 2018. The data was, as detailed in the paper, screened, merged and validated. A dual system estimation was applied to determine the likely number of victims who remain uncounted.

The consolidated list of victims contains the names of 1161 people believed to have been present in Kocho on 15 August 2014, almost all of whom – if not all – would have been forced into the school by ISIS fighters. The dual system estimation indicated that the total number of victims, including those who remain uncounted, is likely to be 1170. This accords with various testimony-based estimates of there being approximately 1200 people in Kocho on 15 August 2014. Kocho’s population appeared almost equally split along gender lines, with 579 of the identified victims being male and 582 being female. Kocho had a young population age structure, with 558 (48%) of its residents aged under 20 years.

The demographic analysis supported the data gathered from testimonies taken from the survivors, which indicated that while Kocho’s entire population was targeted by ISIS, the violations suffered varied depending on the gender and age of the victims. Of those who were reported dead or missing (some victims’ relatives were unwilling to list them as having died in the absence of witnesses to their murder or confirmation of the presence of their remains in the mass graves), 90% of men aged 20 years and above  – 257 out of 290 – were reported as dead or missing.

Far fewer women were reported as dead or missing – 26 (14%) among the 187 women in the age range 20–39. There was, however, a sharp increase in the number of women over the age of 40 who were reported as dead or missing, with 42 (52%) of the 81 women aged 40–59, and 42 (88%) of the 48 women aged 60 years and above being so reported. The demographic analysis accords with survivors’ accounts which described ISIS executing men and adolescent boys in and around Kocho on 15 August 2014, while older women were executed hours later at Solagh, a few kilometres away. Exhumations of multiple mass grave sites of Kocho’s victims are ongoing.

A demographic analysis of those who were rescued from captivity – a catch-all term governing a diverse range of situations through which abductees returned to their families – also revealed important insights into the ways in which ISIS targeted Kocho’s Yazidis.

The number of boys and girls under 10 years who were reported as rescued is 135 (86%) and 119 (83%) respectively. Among those aged between 10 and 19 years, 56 (41%) and 84 (69%) were rescued. Only 28 (10%) of the men aged 20 years and above were identified as rescued. The number of those rescued was 161 (86%) among women in the age group 20–39; and 39 (48%) among those aged 40–59. As one might expect, given the number of older women reported dead or missing, only 6 (12%) among those aged 60 years and above were reported as having been rescued.

Children and women of childbearing age were much more likely to have been kept alive in ISIS captivity and, consequently, to have the possibility of rescue. Following ISIS’s loss of territorial control in Iraq and Syria, the fate and whereabouts of the still-missing women and girls (as well as boys under the age of 7 who were more likely to have been allowed to remain with their mothers) remains a painful and largely unanswered question. Hope still remains, with reports of Yazidi women being rescued during raids in areas once held by and now liberated from ISIS. Recently, several Yazidi boys who had been forced to fight with ISIS have also been rescued. Precisely how many survived the training and/or the battlefield remains unknown. Nevertheless, the data gathered by the Yazidi Victims Demographic Documentation Project indicates that more boys who were trained and made to fight as part of ISIS have survived than testimonial evidence has previously suggested.

With the Security Council’s establishment of the United Nations Investigative Team to promote Accountability for Crimes Committed by Da’esh (UNITAD), we are inching towards accountability, most likely in the form of trials before domestic courts. As the Yazidi Victims Demographic Documentation Project progresses, similar analyses will be conducted for all Yazidi villages and Sinjar town. It is hoped that the analyses, and underlying data, will provide reliable information that may easily be entered into evidence in prosecutions across multiple jurisdictions.

Sareta Ashraph is a barrister specialised in international criminal and humanitarian law, and is the co-principal of the LSE Middle East Centre’s Yazidi Victims Demographic Documentation Project. From February to August 2019, she served as Senior Analyst on the UN Investigative Team for Accountability of Da’esh/ISIL (UNITAD). In 2018, she authored the Global Justice Center’s report ‘Gender, Genocide, and Obligations under International Law’. While serving as Chief Legal Analyst on the UN Commission of Inquiry on Syria from 2012-2016, Sareta led the reporting for the Commission’s June 2016 report “They Came To Destroy: ISIS Crimes Against the Yazidis“, which determined that ISIS was committing the crime of genocide, among other international crimes. She is an associate tenant of Garden Court Chambers in London. @SaretaAshraph

A Novel Rationale to the Classification of Hostilities between Occupying Powers and Non-State Armed Groups

July 23, 2019

Marco Longobardo is a Lecturer in International Law at the University of Westminster, where he also teaches public international law, international humanitarian law, international criminal law and other related subjects. He undertook his doctoral studies at the Sapienza University of Rome and previously lectured at the University of Messina and in the context of international humanitarian law courses for the personnel of the Italian armed forces. He has published extensively on public international law issues and he is the author of The Use of Armed Force in Occupied Territory (CUP 2018).

Introduction

Based on the research conducted for my book on The Use of Armed Force in Occupied Territory (CUP 2018), this blog post addresses the contentious issue of the classification of hostilities in occupied territory, focusing on the rules applicable to the hostilities between the occupying power and non-state armed groups. This brief analysis does not explore the main legal framework governing the use of armed force in occupied territory, that is, a law enforcement scheme, but rather, it focuses only on the rules on the conduct of the hostilities (on the relationship between law and enforcement and conduct of hostilities in occupied territory, see my book, pp. 229-238). It is argued here that the rules on conduct of hostilities that are applicable in international armed conflicts (IACs) govern the occupying power’s use of armed force in occupied territory when hostilities occur. After a brief overview of state practice and judicial precedents, this piece will offer a novel argument in support of this conclusion.

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