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Yearbook of International Disaster Law – call for abstracts

September 23, 2019

Please see the link here for a call for abstracts for Issue no. 2 of the Yearbook of International Disaster Law (Brill). The deadline is 31st October 2019.

The Yearbook of International Disaster Law (YIDL) aims to foster the interest of academics and practitioners on legal and institutional issues relevant to all forms of natural, technological and human-made hazards, including rapid and slow onset events, but excluding events such as armed conflicts or political/financial crises per se. The YIDL is a double-blind peer review journal published by Brill.

Abstracts for potential articles shall be sent by 31st October 2019 at Abstracts should be between 700 and 1000 words. Authors are also kindly requested to attach a short curriculum vitae. Further details are available in the call.

Organizing Responses – a (partial) reply to the blog symposium

September 23, 2019

I feel truly honoured to see such rich posts by a range of great scholars and practitioners, each raising important and though-provoking questions on and criticism of my book Organizing Rebellion. This leaves me with the intimidating task of ‘organizing responses’. While I will not be able to engage with each question or disagreement (and I must admit that I do not necessarily have answers to all issue), I will respond to some points (without suggesting that these are more important than others). In fact, each contributor would deserve a full post in response! Following the structure of the book, I will first respond to IHL issues, and then turn to human rights and international criminal law.

Non-State parties to armed conflicts – more than the ability to engage in violence?

In Organizing Rebellion, based on law and practice I identify three strict criteria (as opposed to the five groups of indicative factors established in by the ICTY in Boskoski, para. 199) for classifying non-State armed groups as parties to armed conflicts. I conclude that a group needs to be (1) a collective entity (2) able to engage in sufficiently intense violence and (3) able to ensure respect for fundamental humanitarian norms. 

Laurie Blank poses a number of important questions on which actors need to determine whether a group is sufficiently organized, when, and according to which standard of certainty. She underlines that those classifying a conflict will necessarily draw conclusions based on the information available at the time. Among the three criteria I identify, the one that Laurie rightly points out as normally most assessible is whether a group is able to engage in sufficiently intense violence. In contrast, information on the internal organization of an armed group is more difficult to come by. As in my view the current state of international law – whether States or other actors classify a situation while it is unfolding or with the benefit of hindsight – does not allow to reduce conflict classification to an assessment of the intensity of violence, I see the dilemma that Laurie points out: should a State be given the benefit of the doubt if its classification was ‘reasonable at the time and based on the information available’; or should the State be required to err on the side of caution unless it has sufficient proof of all criteria? While I do not have a definite answer, Laurie’s reference to the ‘reasonable commander’ standard makes sense to me: parties to the conflict – and other actors engaged in conflict classification – have to take decisions at the time and in the context in which they operate. At the same time, this standard also means that if the available facts do not allow for the conclusion that a situation amounts to an armed conflict, operations have to be conducted in conformity with human rights law only.

Marco Sassòli engaged especially with the criterion that armed groups need to be able to ensure respect for fundamental humanitarian norms. He remarks that I remain rather vague on which IHL rules are the ‘fundamental’ humanitarian norms that armed groups must be capable of respecting (and I confess this is correct). This is because I do not think that entering into a rule-by-rule assessment is necessary for the purposes of conflict classification. The ability to ensure respect for fundamental humanitarian norms comes down to the ability of a group’s leadership to impose discipline: in practice, ensuring that members of the group do not share intelligence with the adversary (an operational decision, no required by IHL), or ensuring that they do not torture a detainee (required by IHL), is essentially a question of discipline. In other words, for the purposes of conflict classification, IHL requires that armed groups are sufficiently organized to ensure respect for prohibitions set out in IHL, including not to pass sentences without a fair trial, not to pillage, and not to deprive anyone of their liberty in an arbitrary manner or without basic guarantees. While this approach is in line with the practice and scholarship I examined (pp. 41-42; 87-92), Marco is right in pointing out that binding armed groups by IHL raises very practical and partly unresolved issues, such as how a commander can comply with the obligations deriving from ‘command responsibility’ without having the capacity to conduct trials necessary to punish serious IHL violations?

How to merge two or more armed groups into one party to conflict?

Katharine Fortin takes up my arguments on when two or more different armed groups can be legally considered one party to conflict. As she points out, this is a very topical but underexplored issue. Katharine underlines that the issue can arise in at least two contexts: (1) at the outset of a conflict, there might be different groups (not yet party to the conflict) joining forces. Or (2), at a later point, the question may arise whether a certain group (newly arising or already existing) can be considered to be part of (or ‘belonging to’, or being ‘under the control of’) an existing non-State party to the conflict. International law does not provide us with clear answers on when different armed groups may considered as merging into one party to conflict. I argue that – absent a very clear C2 structure – in order to qualify as one party to a conflict, there needs to be either a form of leadership in a horizontally structured group (context 1) or the existing party to the conflict (context 2) that exercises what I term ‘operational coordination’ and ‘strategic authority’ (see pp 81-85; 101-104, as well as here) over either the subgroups or the other armed group. I suggest only one approach because after all, in both contexts the question is how to establish a sufficiently strong link between one or more non-State armed groups.

Different degrees of ‘organization’ in IHL and human rights law – really?

A number of contributors commented on armed groups under more than one field of international law. Before looking at some of these comments, I need to concede to one point already: I have written about ‘armed groups’ under IHL, human rights, and criminal law. However, Marco is probably right that the fact of being ‘armed’ is only a condition sine qua non under IHL.

Daragh Murray wonders whether there really is a difference between the degree of organization necessary to be party to an armed conflict and that of being potentially bound by human rights obligations (I say ‘potentially’ because I do not conclude or claim that all armed groups have human rights obligations (yet) as a matter of law). He suggests – in line with his inspiring book – that the basic level of internal organization is essentially the same for armed groups under IHL and human rights law; however, the scope of obligations of a group would depend on the context in which the group operates.

As I explain at the outset of Chapter 6 (p. 147, but admittedly I should have repeated this more often), in order to have possible human rights law obligations, armed groups should be a collective entity able to ensure respect for the applicable law. I do not see great differences between these criteria and similar ones under IHL; hence, one could say that the core is the same (however, IHL also requires that a group is able to engage in intense violence, which is not the case under human rights law). Afterwards, in my view the degree of possible human rights obligations – in particular obligations to protect and to fulfil a wide scope of human rights – depends on the context in which the group operates (territorial control?) and the capacity or power of the group (is it exercising quasi-governmental authority?). While I tend to agree that respecting basic IHL and human rights law does not necessarily require a different kind of capacity, maintaining law and order or fulfilling the right to health under human rights law is a different ball game.

Drawing on her excellent book on accountability of armed groups under human rights law, Katharine Fortin further suggests that when determining possible human rights obligations, we may not need to draw a bright line between armed groups exercising de facto control over territory and those exercising quasi-governmental authority. And I agree: I do not see the three categories I suggest as ‘silos’ with thick walls but rather as signposts or analytical tools that provide orientation when reflecting about possible human rights obligations of a wide spectrum of groups. On this scale, however, I do see significant differences in the scope of possible obligations between groups gaining de facto, and often short-term, control over a village during a conflict, and groups exercising State-like authority in defined territory.

In this respect, in response to Ezequiel Heffes’ important – and to my knowledge unexplored – point on whether the same armed group could have different human right obligations in different operational contexts, I would probably argue that it can – depending on the degree of control it exercises. To some extent, this would be in line with the view that States have different degrees of human rights obligations depending on whether they operate at home or extraterritorially. In contrast, if an armed group is involved in an armed conflict reaching the threshold of Additional Protocol II, I would see the group bound by applicable IHL rules in the whole territory of the State in which it operates.

One challenge in writing about possible human rights obligations of armed groups is that there are few treaties that contain such obligations, and actual State practice – other than in UN fora – is rare. Similarly, the question of which weight to give to the practice and views of armed groups in the formation of international law remains as intriguing (as pointed out by Ezequiel Heffes) as it is unclear. While I see the significant value in working with armed groups to develop their codes of conduct (as done by the ICRC), in engaging groups to sign deeds of commitments (as done by Geneva Call), or developing action plans to protect children (as done by the UN), I would refrain from making clear findings on the international legal significance of armed group’s practice or commitments. I would, however, always stress their practical value to ensure respect for relevant norms.

From philosophy, to law, to synergies between possible human rights obligations and the obligation not to commit crimes against humanity

During my journey and attempt to make sense of legal definitions and the (short) history of international criminal law, I delved into philosophical writings on international crimes. When inquiring what makes a crime a ‘crime against humanity’, meaning what situations convinced States that certain crimes shall be criminalized under international law, I concluded that the essence of a crime against humanity is that large-scale and heinous crimes are committed against populations deprived of protection against these acts. This would mean that these crimes are either committed by States or State-like entities, or contexts in which the State is unable or unwilling to protect the victim population. Adejoké Babington-Ashaye takes issue with this finding, arguing that the societal context in which a crime is committed should not be a determining factor. And I agree with this legally speaking (as I do with most of her post!): I do not intend – and I hope I am clear on this in the book – to introduce another legal criterion or requirement characterizing crimes against humanity. From a philosophical point of view, however – and this means at a meta-level, not the level of the law – I am convinced that what makes a crime a ‘crimes against humanity’ is more than the fact that they are mass atrocities.

Mathias Holvoet further delves into the question of whether the obligation not to commit certain acts (which admittedly resemble human rights violations) as part of crimes against humanity would also suggest that relevant groups (or individuals?) have human rights obligations? I am not convinced that drawing parallels or synergies between international criminal law and human rights law is the best avenue to establish human rights obligations of armed groups. In my view, and I think Mathias agrees, the criminal acts underlying crimes against humanity or genocide are not criminalized (and therefore prohibited) because they are violations of the perpetrator’s human rights obligations but because of the contextual elements that elevate such acts into the realm of international crimes. Interestingly, Mathias nonetheless raises the question if there is not more to explore in the relationship between crimes against humanity and human rights law. And it seems there might be. For example, I argue that only entities that have an obligation to protect humans under their control (i.e. States and possibly State-like groups) can instigate crimes against humanity through a policy of tolerating relevant criminal acts. Moreover, the underlying acts of apartheid, arguably enforced disappearance, and persecution (if the latter is understood as meaning serious deprivation of fundamental rights) appear to require a certain degree of power and control over territory, which I do not think is the case for other acts. As a result, not all armed groups will be able to create an environment in which certain crimes against humanity can be committed.

Which genocidal crimes can (armed) groups commit?

Turning to armed groups and genocide, Sareta Ashraph inquires whether I believe that the drafters of the Genocide Convention deliberately drafted certain genocidal crimes in a way that implicitly requires ‘an organizational structure to accomplish the commission of crimes of such magnitude’ while deliberately omitting State involvement as a requirement for the commission of genocide. To be frank – I do not know, and the drafting history does not seem to tell us. My impression is that while the issue of State involvement as a legal requirement for the crime of genocide was discussed and dismissed, the drafters did not consider the issue of State or collective entity involvement when elaborating the underlying crimes. In this respect, I agree with Sareta that the rather open or general formulations included in the Genocide Convention provide some flexibility for judicial organs to apply the Convention to changing realities – such as new weapon or communication systems that seem to make the commission or instigation of certain crimes easier.

In this respect, Melanie O’Brien makes an important point by challenging my conclusion that while some of the underlying crimes of genocide will not need involvement of a State or State-like entity (killing or causing serious bodily or mental harm), others often do (namely ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction’, ‘imposing measures intended to prevent births within the group’, or ‘forcibly transferring children of the group to another group’). In fact, given the (fortunately) limited judicial practice on genocide, it is difficult to make very firm statements one way or another. While I do think that in all likelihood the latter crimes listed above need the involvement of an entity that exercises some form of control over the target group, I refrain from making categorical statements on this point (see p. 300), and I would not exclude that the carefully crafted examples Melanie provides could amount to genocide, if all contextual elements are met.

Last but not least Thank you – once again – to all contributors and to the editors of AGIL and Opinio Juris

Organizing Rebellion Symposium: Context or Abstract? A victim-centric approach to understanding key elements of crimes against humanity

September 20, 2019

Adejoké Babington-Ashaye is a former investigator at the ICC, an expert with the Wayamo Foundation on national justice and accountability measures for international crimes, a Fellow at the Harvard Law School and Senior Counsel at the World Bank. Her contribution is written in her personal capacity and the views contained herein do not necessarily reflect those of these affiliations.

What merit lies in the strict adoption of a statist approach to crimes against humanity? According to Rodenhäuser, very little. In Part III of this important book, Rodenhäuser tackles the state or organizational policy requirement of crimes against humanity under the Rome Statute, notably the capability of a non-state actor to commit an attack. His in-depth analysis of the different non-state actors reveals two broad categories. On one hand, there are non-state actors engaged as parties to an armed conflict with the capacity to attack military or civilian targets. This group is considered to have the requisite degree of organization to commit an attack against a civilian population. The second broad category contains non-state entities that are not party to an armed conflict. Their organization and, by extension, capability to commit an attack meeting the definition of crimes against humanity, seems less obvious. Some, such as Judge Kaul in this Dissenting Opinion, have argued that the historic development of crimes against humanity suggests an interpretation that limits the commission of such crimes to a state or an “entity which may act like a State or has quasi-State abilities.” Others, such as Hansen, have roundly criticized a statist approach as being “based on a Eurocentric understanding of mass violence where only the state (or entities that resemble a state) is seen as capable of adopting and implementing policies to conduct such violence.”

Drawing from the Kenya situation before the ICC, Rodenhäuser rightly suggests that a contextual interpretation, instead of an abstract and history-based “state-like” approach, is more useful. A contextual interpretation would take into consideration the fact that, like Werle and Jessberger contend, “the crucial factor is not the internal structure of the group, but its potential, in terms of both personnel and physical capacity, to commit a widespread or systematic attack on a civilian population.” To Rodenhäuser, if the goal of international criminal justice is to “address heinous crimes that shock humanity’s conscience,” then there is no merit in excluding acts that meet all other elements of crimes against humanity on the sole basis that these acts were not committed by states or state-like entities. I could not agree more. For those engaged in the practice of international criminal law, this is a critical point. Such a restriction would not only cause unwarranted obstacles to international criminal justice, it would also preclude the ability of international criminal law to respond to the ever-growing variety of entities capable of committing mass atrocities. And, realistically, should victims be denied justice on an international scale merely because the entity responsible for the attacks did not control a territory or possess other “state-like” qualities?

Rodenhäuser also presents a carefully written and detailed analysis of the development of crimes against humanity as a category of international crimes. From the Nuremberg Trials to the international criminal tribunals and hybrid courts, the reader is taken on a journey towards a deeper understanding of the definition of crimes against humanity. This journey culminates with the codification of crimes against humanity in the Rome Statute and the interpretations adopted by the International Criminal Court. Throughout, Rodenhäuser reveals the struggle between a contextual and abstract interpretation noting that too much of a contextual interpretation has been termed by some as “victim- focused teleological reasoning.” However, the need for an unashamedly victim-centric approach to key elements of crimes against humanity is evident in the very definition of this category of crimes. Such an approach is rooted in the wording, context, and object and purpose of Article 7 of the Rome Statute and the preamble to the entire treaty. As Rodenhäuser correctly observes, adopting a contextual approach to interpretation leaves sufficient flexibility to “address a broad variety of situations and actors in order to end impunity for unimaginable atrocities.”

It is for this reason that the introduction of a “societal context” element to crimes against humanity was somewhat surprising. In expanding the concept of crimes against humanity to non-state entities, Rodenhäuser notes that “[d]iscussion so far has shown that in addition to being large-scale crimes targeting populations, CAH are distinguished from ordinary crimes by the societal context in which they occur.” (Emphasis added).  He posits that the study undertaken “has shown that crimes harming humanity are best understood as heinous human rights violations targeted at a victim group or population in a societal context in which victims are deprived of effective protection by the governing authority.” In that sense, crimes against humanity “signify large-scale crimes committed in accordance with a group policy and taking place in a societal context in which the territorial state is either actively or passively involved in the crime, or unable to prevent or halt it.” According to Rodenhäuser,

With regard to the societal context of CAH, at least two scenarios are conceivable. On the one hand, perpetrators would either need to constitute themselves as the governing authority, or be capable of co-opting the governing authority, in order to enable the commission of large-scale crimes and avoid prosecution. On the other hand, irrespective of the non-state entity’s capacity, CAH can also be committed if the state is simply unable to fulfil its pro­tective obligations towards the victim population. While the former case requires a certain political power on the part of the non-state entity, in the latter case it is the incapacity of the state that enables the commission of the crime. The territorial state would need to be dysfunctional to the extent that it is unable to prevent or to halt the crimes.

Finally, he asserts that “there is no need for international criminal justice if a non-state organization commits a widespread crime against a civilian population in a state in which functioning law enforcement structures effectively respond to and subsequently prosecute the crimes.”

I fully agree with Rodenhäuser that international intervention as envisioned in the Rome Statute is unwarranted where domestic law enforcement structures function and the state has demonstrated a willingness and ability to address the crimes by itself. This is the essence of the principle of complementarity. However, I wonder if the inclusion of the “societal context” to the elements of what distinguishes a crime against humanity from “ordinary crimes,” would result in a limitation of the scope of crimes against humanity. This may possibly achieve a different end than Rodenhäuser might have intended. Rodenhäuser seems to acknowledge this since he adds that while “this conceptual understanding of CAH is not fully embraced in the crime’s legal definition, it can provide important guidance in borderline questions.” Perhaps, and perhaps not.

It is questionable whether the societal context in which the crimes occur is, or should ever be, a determining factor for when certain crimes are considered crimes against humanity. Furthermore, the ability of a state or governing authority to effectively protect a civilian population should not be a determining factor of whether the heinous human rights violations which occurred are understood as “crimes harming humanity.” If crimes meet the legal requirements of crimes against humanity under the Rome Statute, is that not sufficient? Should these crimes not be considered crimes against humanity even if they occur in a societal context where a functioning criminal justice system exists? To me, there is a difference between the characterization of the crimes per the legal definition under international law and the response mechanism – international or national – that is adopted to address these crimes. To require an element of dysfunction or state collusion in conceptualizing the types of crimes that amount to crimes against humanity appears to conflate the characterization of the crimes with the elements required to trigger international criminal justice intervention. Illustratively, to many, the intentional killing of thousands of civilians in the United States on 11 September 2001 amounted to crimes against humanity because the requisite elements of this international crime were arguably met. The fact that the 9/11 attacks are dually labelled terrorism and have been predominately addressed through domestic proceedings would not erase the characterization of these attacks as crimes against humanity. The United States did not need to be viewed as a failed or dysfunctional state for humanity to also be harmed by the attacks which occurred that day. Thus, it is not the societal context in which victims of mass atrocities find themselves that determines whether humanity has also been harmed by the occurrence of these crimes. The international community is always affected whenever mass atrocities occur regardless of where they occur, or the societal contexts in which the occur. And so, it is suggested that humanity is harmed whenever, per the legal definition of crimes against humanity, a widespread or systematic attack is directed against a civilian population pursuant to, or in furtherance of, a state or organizational policy, regardless of the societal context in which the victims find themselves. How humanity responds is a different matter, and this is where, as noted above, I agree with Rodenhäuser. If the societal context in which these crimes have occurred is such that the state is able to conduct effective national investigations and prosecutions (on behalf of humanity), then international criminal justice intervention is not necessary. However, the adoption of a non-international justice response does not change the characterization of the crimes which have occurred, and we must be careful not to conflate the characterization with the response. In other words, the societal context in which the crimes occur, in my view, should not be a distinguishing factor between crimes against humanity and “ordinary crimes.”  

These observations do not detract from Rodenhäuser’s extraordinary achievement in compiling a comprehensive review of the responsibility of non-state armed groups under international criminal law and setting out general conclusions which can assist the investigation and prosecution of atrocity crimes. He clearly notes that territorial control is not a prerequisite for an organization to develop and promulgate a policy underlying crimes against humanity. Furthermore, as Rodenhäuser writes, “states have not included the crimes’ history as a source of law in the ICC Statute.” Therefore, the characteristics of the collective entities behind these crimes should be derived from the crime’s definition not an abstract historical viewpoint. This approach to interpretation is critical to ensuring international criminal law is not shielded from changing realities.

Organizing Rebellion Symposium: Who Can Commit Genocide? A Discerning Analysis of Non-State Entities as Perpetrators

September 20, 2019

Up at Opinio Juris, you can find the latest post by Sareta Ashraph “Organizing Rebellion Symposium: Who Can Commit Genocide? A Discerning Analysis of Non-State Entities as Perpetrators” in our co-hosted book symposium on Organizing Rebellion. Check it out here!

Organizing Rebellion Symposium: Crimes Against Humanity Committed by Non-State Actors. How Much ‘Organizing’ Do They Require?

September 19, 2019

Dr. Mathias Holvoet is currently a Legal Officer at the Federal Prosecutor’s Office of Belgium.

I want to thank the editors of the symposium for the opportunity to comment on Dr. Tilman Rodenhäuser’s book. Organizing Rebellion, which covers three neighbouring, but distinct fields of international law, is a comprehensive, well-researched, nuanced piece of scholarship which is firmly grounded in practice and reality. Tilman’s work has greatly enriched my thinking and writing about crimes against humanity. In this piece, my comments will therefore also focus mainly on the parts of the book dedicated to non-state armed groups and the law of crimes against humanity. The more critical remarks made in this post are meant to stir debate and reflection and should therefore not be read in any way as tempering my appreciation of Tilman’s impressive work.

There is much to be commended in the part of the book on the law of crimes against humanity. I am especially convinced by the conceptual considerations on crimes against humanity (pp. 219-228), in which Tilman provides a real-life and practical justification for crimes against humanity which is devoid of any metaphysical contemplations about the notion of “humanity”. The involvement of the state is pivotal in his theory, as evidenced by his statement that “(…) the territorial state is either actively or passively involved in the crime, or unable to prevent it”. Other scholars provide further theoretical grounding for his conception of crimes against humanity. In particular, van der Wilt has justified crimes against humanity in the following way: “The oppression by the state of its own population- or its impotence to shield the population against oppression by other powerful groups- bereaves that people of a vital capacity and simultaneously arouses the concern of all humanity, because the essential destruction of political realm reflects upon all of us.” In the same vein, in his normative account on crimes against humanity, Larry May justifies international criminal liability on the grounds that “a state sacrifices its sovereign authority over criminal law when it deprives its subjects of physical security or subsistence, or is unable or unwilling to protect its subjects from harms to security or subsistence.” Indeed, the total perversion of the fundamental concept of the state resonates with all of us universally and can therefore be considered as being against the interests of humanity as a whole. By elaborating his enforcement theory, Alexander Greenawalt accurately points out that the fact that ICL is concerned with “offenses whose very commission is associated with failures of domestic sovereignty, either because of state inability to prosecute or because of illegitimate state reluctance to prosecute” is “built into the definitions of each of its offenses.” More specifically with regards to crimes against humanity, Greenawalt holds that “(w)here state policy guides the commission of atrocities, the enforcement challenge is obvious: the state’s involvement casts immediate doubt on the state’s willingness to pursue justice in good faith”, while “widespread or systematic attacks that are committed pursuant to a nonstate organizational policy” are “(…) associated with extraordinary state inability to enforce its criminal law against the wrongdoers, most likely because the state has lost effective control over portions of its territory.”

I also find Tilman’s interpretation of the “organizational” notion within the policy requirement under Article 7(2)(a) ICC Statute, which determines the extent to which non-state actors come under the purview of the law of crimes against humanity, in general thoughtful and methodologically sound (see pp. 252-262). Tilman carefully constructs a definition of the organizational notion by looking, inter alia, at the ordinary meaning as well as the context in which the notion is embedded, both in the ICC Statute and in the Elements of Crimes. Moreover, he rightly refrains to rely on a teleological interpretation which would deduce any meaning of “organization” from the ICC Statute’s broad objectives as spelled out in the Preamble to the Statute. One point of concern however is the lack of engagement with the imperatives of the legality principle under Article 22 ICC Statute, which aims to protect the interests of certainty and predictability when judges interpret a certain provision. Perhaps Tilman could elaborate further about whether he is of the opinion that his capacity-oriented interpretation fulfills the prerequisites of the legality principle and, more generally, how the principle should be operationalized when interpreting contextual elements such as the “organizational” notion.

Tilman’s elaborations on how an organization might be specifically involved in the commission of a policy to commit crimes against humanity by analyzing the Elements of Crimes as well as the attribution of acts of individuals to the collective entity behind crimes against humanity constitute very important efforts to clarify the still elusive law of crimes against humanity (see pp. 262-268 and 304-311). In addition, Tilman identifies important avenues for further research which are prompted by “contemporary realities such as international terrorism”. Indeed, the crimes against humanity which have been prosecuted to date involved crimes committed on a certain geographically bound territory. However, nowadays, and arguably increasingly in the future, many non-state actors reject the system built around State sovereignty and territorial integrity.  As the example of Islamic State and its “franchises” or “provinces” in Africa and Asia show, the violence some non-State actors commit largely follows from the desire to impose their ideology and values globally. The phenomenon of lone wolf attacks demonstrates that the augmented digitalization and mobility that characterize today’s world increases the cross-border ability of non-State actors to implement their criminal policies by directing, inspiring or enabling individuals to carry out attacks against civilians anywhere in the world. In this regard, it becomes indeed important to reflect on “whether a widespread attack against a civilian population committed by individuals in one state, which is inspired by the policy of an organization primarily based, can amount to a CAH”.

Tilman is moreover right to point out that an overemphasis on the interpretation of the organizational notion to distinguish crimes against humanity from ordinary crimes is unnecessary and overblown. I’m in full agreement with his argument that “(…) a broad interpretation of the entity behind CAH does not downgrade CAH, or equate it to human rights violations. Even if acts factually amounting to CAH could be committed pursuant to or in furtherance of a policy of a group with relatively limited capacities, CAH would still consist of a widespread or systematic course of conduct involving defined acts committed against a civilian population” (p.280). Indeed, in my view, in at least some scholarship on crimes against humanity, the policy element and the “organizational” requirement more in particular have incorrectly been portrayed as being the only indispensable element to delineate crimes against humanity from “ordinary” crimes or human rights violations. Apart from having to prove the different other contextual elements of crimes against humanity as spelled out by Tilman, a nexus between the individual act of the accused and the context of crimes against humanity, and this both in terms of actus reus and mens rea, needs to be shown. Proving all these different constitutive elements puts a heavy evidentiary burden on prosecutors charging crimes against humanity, and fears of ‘banalization’ of the concept of crimes against humanity are thus unwarranted.

One issue that I would have been keen to see Tilman analyse more deeply is the synergy and potential overlap between the possible human rights obligations of non-state entities, even those that do not possess control over a territory and a population, and non-state organizations accountable for a policy behind crimes against humanity. Tilman is entirely right when he is exercising caution to avoid conflation between the system of individual criminal responsibility that is international criminal law on the one hand and the system of collective responsibility that is international human rights law on the other hand. I fully subscribe to his statements that “(u)nder international criminal law, crimes against humanity do not apply to human rights violations as such-only if they are committed in particular contexts” and that the “(…) essential characteristic of crimes against humanity (…) would not be considered if a simple analogy between the criminalization of certain acts as international crimes and human rights obligations of armed groups were drawn” (p. 208). Nonetheless, in my view, the synergies between the two fields of law merit further exploration. While the law of crimes against humanity is indeed concerned with individual criminal responsibility, Tilman acknowledges that international crimes ‘‘are often caused by collective entities in which the individual authors of these acts are embedded’’ (p. 304). Moreover, when elaborating on which types of organizations can be behind a policy behind crimes against humanity through tolerating an attack against a civilian population, Tilman explicitly engages with international human rights law by stating that “(i)in international law, the obligation to protect individuals from crimes normally stems from human rights law. Consequently, the scope of entities behind a policy of tolerance would be limited to states and non-state organizations with quasi-governmental capacities having the obligation the obligation to protect human rights of individuals under their control” (p. 266). It might have been interesting if Tilman would have investigated the linkages between the collective responsibility of non-state entities for human rights violations and the need to establish a collective entity behind a policy as a contextual element behind crimes against humanity more explicitly and forcefully. After all, the proponents of the more restrictive “State-like” interpretation of the organizational notion rely on international human rights law to argue against a broad interpretation of the organizational notion. Claus Kress for instance asserts that “only once the obligation of an organization to respect international human rights can be clearly established under general international law can a human-rights-inspired teleological argument to include such organizations in the policy requirement of crimes against humanity become available.” It could have made his “capacity-based” interpretation of the organizational notion more cogent if Tilman would have engaged with Kress’ argument, especially since he seems to argue that all armed groups, including those not controlling territory and population, are bound by an obligation not to interfere with fundamental rights (pp. 206-207). An ECCC Pre-Trial Chamber has specified that “fundamental rights” consists of “the right to life, to be from torture, cruel, inhuman or degrading treatment or punishment, to liberty and security, to be treated with humanity and with respect for the inherent dignity of the human person when deprived of liberty and to a fair trial” (para. 118). As also noted by Tilman (p. 208), these fundamental rights consist broadly of prohibitions of the acts underlying crimes against humanity (p. 208). The capacity to respect most of the fundamental rights as enshrined as underlying acts under Article 7 of the Rome Statute should be rather low, as they consist merely of a negative obligation to refrain from violations. Only two specific underlying acts under Article 7, namely enforced disappearances and apartheid, clearly require something more than a negative obligation to refrain from violations, and thus a higher degree of capacity, as correctly acknowledged under pages 256-257 of the book. With regards to enforced disappearance as a crime against humanity, Kai Ambos very convincingly explains that the notion of “political organization”  under Article 7(2)(i) ICC Statute can only refer to organizations that can grant access to the administration of justice or any effective legal remedy and that have a duty to inform about the whereabouts of the victims of a deprivation of liberty. He concedes that the notion of “organization” under Article 7(2)(i) should be understood “more narrow” and illustrates this by emphasising that a “state-like organization with territorial control which detains a person, transfers that person to ‘its’ territory and thereby impedes that person access to the administration of justice does not omit, but indeed commits, a crime of deprivation of liberty with the subsequent impediments of an access to justice.” As for apartheid, Tilman correctly asserts in my view that the requirement under Article 7(2)(h) ICC Statute that the inhumane acts are “committed in the context of an institutionalized regime of systematic oppression and domination” entails that an organization behind a crime against humanity of apartheid “would need to exercise quasi-governmental authority in a territory.” I would be eager to hear Tilman’s thoughts about the possible convergences between human rights obligations of non-state actors and policies of organizations behind crimes against humanity also with regards the other underlying acts of crimes against humanity under Article 7 of the Statute.

Organizing Rebellion Symposium: The Second-Fiddle Perpetrators–Non-State Genocidaires

September 19, 2019

Up at Opinio Juris, you can find the latest post by Melanie O’Brien, ‘The Second-Fiddle Perpetrators–Non-State Genocidaires’ in our co-hosted book symposium on Organizing Rebellion. Check it out here.

Organizing Rebellion Symposium: Overcomplicating organisation? Is there really a distinction between the IHL and IHRL organisation threshold?

September 18, 2019

Daragh Murray is a Senior Lecturer at the University of Essex School of Law & Human Rights Centre, and author of Human Rights Obligations of Non-State Armed Groups (2016).

Organising Rebellion: Non-State Armed Groups under International Humanitarian Law, Human Rights Law, and International Criminal Law should be essential reading for anyone working on issues relating to conflict classification, or the role of non-State armed groups. I have prepared a more detailed review highlighting the many strengths of the book, and this is forthcoming in the International Review of the Red Cross.

The focus of this post, however, is to challenge and explore the apparent distinction drawn in Organizing Rebellion between the baseline level of organisation required for an armed group to be subject to obligations under international humanitarian law (IHL) or international human rights law (IHRL), and the linking of obligations to organisational capacity. In raising this issue my concern is twofold. First, that any such distinction is not fully reflective of the actual content of the obligations imposed under each body of law. Second, that this distinction introduces unnecessary additional complexity into an already complex area; this may pose difficulties with respect to practical application. This post looks at the organisational framework developed in Organizing Rebellion, whereby the scope of international obligations imposed is dependent upon factors such as territorial control, governance infrastructure, military capacity, and internal discipline.

The degree of organisation required to give effect to obligations under IHL and IHRL

It is generally accepted that different levels of legal obligations are imposed on armed groups dependent upon the circumstances in which they operate. For example, under IHL armed groups party to an armed conflict are either subject to obligations imposed by common article 3 and customary IHL, or obligations imposed by common article 3, customary IHL and Additional Protocol II. As I, and others have argued similar distinctions should arguably exist with respect to the degree of obligations imposed on armed groups under IHRL. Armed groups exhibit significant differences in terms of the degree of control exercised over territory or populations and it is therefore appropriate that these differences are recognised, and varying degrees of IHRL obligations imposed. Organizing Rebellion agrees with this approach.

The question is whether these differences in the scope of obligations imposed on armed groups should be linked to an armed group’s organisational structure. In my opinion (a) all armed groups must demonstrate a baseline level of organisation in order to be subject to international obligations, and (b) this baseline is the same irrespective of whether the source of these obligations is IHL or IHRL. That is, armed groups must possess a sufficiently sophisticated organisational structure in order for international law to become applicable in the first instance. After this point the difference in organisational structures required to give effect to further obligations – under either IHL or IHRL – is one of degree, not substance.

For me, the baseline level of organisation required to be subject to international obligations is demonstrated by the existence of an independent will (here, chapter 2). This is characterised by (some form of) central command structure, capable of enforcing internal discipline, or internal rules in a non-military context (here, chapter 3). This ability to enforce internal discipline requires, in turn, the ability to develop organisational plans or policies; i.e. at its most simple, what rules will you enforce and how will you enforce them. Once this independent will is in place, an armed group can – in principle, but dependent upon the degree of investment in organisational structures – give effect to the full spectrum of obligations that may be imposed on armed groups under both IHL and IHRL.

This is conclusion is not unanimously held. A principal objection arguably emerges from confusion as to the nature of the different types of obligations imposed, under both IHL and IHRL. For example, IHRL is often understood as imposing two types of obligations, typically referred to as ‘negative’ and ‘positive’ obligations. Negative obligations are understood as requiring an entity to refrain from engaging in an activity that will result in a violation of human rights. As such, they are considered to be relatively straightforward obligations, capable of being respected by relatively unsophisticated armed groups. The obligation to respect IHRL is typically regarded as falling into this category. Positive obligations, on the other hand, are understood as requiring active measures to fulfil a human right. As such, they are considered to require a greater degree of organisational sophistication. The obligations to protect and fulfil are typically regarded as falling into this category. In IHL similar distinctions are sometimes made between the ‘basic’ obligations imposed by common Article 3, and the more advanced obligations imposed by AP II.

This is not an accurate dichotomy, however. Potential human rights harm is not always immediately evident and once the decision is made to undertake an activity (as opposed to refraining from acting at all) then active planning and analysis will inevitably be required in order to determine whether a particular course of action is likely to result in a human rights violation, or not. It is only on the basis of this planning/analysis that an armed group can then decide to undertake, or refrain from undertaking, a particular course of action, thereby giving effect to their obligation to respect. This conclusion is not unique to armed groups. In a corporate context, businesses’ responsibility to respect gives rise to an obligation of due diligence and giving effect to this obligation clearly requires active measures.

Examples from both IHL and IHRL demonstrate the problem with a rigid negative/positive dichotomy. Customary IHL imposes a number of obligations relating to the precautions required in attack, and these are applicable to all armed groups party to an armed conflict. Many of these obligations could be considered ‘negative’; i.e. do not attack civilian objects, do not launch attacks expected to cause incidental harm that would be excessive  in relation to the concrete and direct military advantage anticipated. However, giving effect to these obligations requires positive measures. For instance, calculating proportionality is a complex task that may depend on active measures including reconnaissance of the target, the development of an intelligence picture, consideration of alternative means and methods, analysis of the likely consequences of the attack, and analysis of the concrete and direct advantage anticipated. Similarly, the obligation to respect IHRL requires an evaluation of the human rights harm that may result from a particular action. If an armed group establishes a roadblock preventing transit through a particular area, the obligation to respect requires that they examine the likely knock-on effects: the potential human rights harm is not restricted to the immediate impact on freedom of movement. For example, the roadblock may affect access to health or education facilities potentially resulting in a violation of those rights. Satisfying the obligation to respect in this instance will therefore require active measures, potentially including an examination of the area, the identification of alternative facilities or access routes, and so on.

Importantly, although the specifics of these obligations differ – a proportionality analysis under IHL is clearly different from an obligation to respect analysis under IHRL, and will require different expertise – the organisational structures necessary to give effect to these obligations are similar. They require an ability to plan, to analyse situations and impacts, and to coordinate activity. Although the content of the obligations are different, the mechanisms or structures necessary to give effect to them are not.

Ultimately giving effect to these ‘basic’ IHL or IHRL obligations requires a similar degree of active planning and analysis. This is the essence of the organisational criterion required in order to possess international obligations in the first instance: the ability to develop an organisational plan or policy, and to have that plan or policy implemented. As such, saying that a higher level of organisation is required for IHL obligations than for IHRL obligations (or vice versa) does not seem to reflect the fact that a similar organisational structure is actually necessary to give effect to the obligations under both bodies of law. This indicates that, once an organisational structure capable of giving effect to obligations under international law is in place, the application of further obligations should not be dependent upon an armed group’s organisational capacity. Rather, it should be linked to the broader context in which the armed group operates, specifically the degree to which it has displaced State authority.

The role of capacity?

Organizing Rebellion, however, links organisational capacity to the application of international obligations. A number of markers of organisational capacity are identified, namely the existence of governance infrastructure, territorial control, military capacity, and internal structure/discipline. The application of international obligations is then linked to these structures. For instance, different IHRL obligations are applied to armed groups exercising de facto control (who are not required to demonstrate governance infrastructure) and groups exercising quasi-governmental authority (who are). Equally, different internal structures are linked to the application of APII and common Article 3.

This may be overcomplicating the situation. While these elements serve as important indicators of organisation, the question is whether there is a distinction between, for example, governance infrastructure and military capacity or whether these are both just manifestations of organisational ability. For example, an armed group exercising de facto territorial control outside an armed conflict will be required to ensure the effective distribution of resources. Should a medicine shortage arise in a particular area, they must ensure that they are aware of this shortage, and that they facilitate delivery of the required medical supplies (illustrative of governance infrastructure). Similarly, an armed group engaged in an armed conflict will be required to oversee military operations throughout the entire area of hostilities. If additional personnel are required in one area, or additional types of weaponry are required in another, they must ensure that they are aware of these battlefield realities, and distribute resources accordingly (military capacity). Is there a real distinction in the organisational capacity required to undertake these two activities, or are they both not just examples of a competent organisation?

The concern is that, in addition to adding an unnecessary degree of complexity, this classification system places an inappropriate focus on an armed groups’ investment in its own organisational structures when determining the application of international obligations. As has been suggested above, the organisational structure necessary to give effect to basic obligations under either IHL or IHL is, substantively, the same as that necessary to give effect to the full spectrum of obligations. The question is only one of degree. Put simply, the organisational structures necessary to oversee an armed group of 100 members exercising intermittent control over 1,000 uninvolved individuals are the same as the structures necessary to oversee an armed group of 10,000 members exercising stable control over 100,000 individuals. Enforcing internal discipline in both types of armed group will require the development of cohesive communication and control structures. The main difference is one of scale; e.g. in the number and type of personnel required to give effect to those structures.

The danger is that, if the application of international obligations is linked to an armed group’s organisational capacity – crudely put: the degree to which it has invested in its organisational structures – this may, in effect, let the armed group off the hook. For example, an armed group may exercise exclusive control over a particular territory and population, but may choose to focus its resources on the war effort without investing in governance infrastructure. If the application of obligations is linked to the armed group’s governance capacity, this armed group may avoid more extensive human rights obligations, to the detriment of the affected population.

This problem could be avoided by recognising that the same core organisational capacity is necessary to give effect to both IHL and IHRL obligations. The gradated application of both IHL and IHRL obligations could then be linked to the circumstances in which an armed group operates, namely the degree to which it has displaced State authority.

Of course, this approach reflects my own bias, and builds on my own work in this area. The reality is that none of these issues are fully resolved, and that none are without controversy. As work regarding the international regulation of armed groups continues to develop it is essential that we have these debates, that we test different theories and approaches, and that we collaborate to find the best way forward.