Editor’s note: This post is part of a joint symposium hosted by the Armed Groups and International Law and Articles of War blogs. This symposium addresses the pending ICC Al Hassan judgment. Katharine Fortin, Sean Watts, and Diletta Marchesi’s introductory post is available here.
Every society throughout history has had some order in place, meaning an established framework that dictates which behaviors are deemed acceptable and encouraged, and which are frowned upon and may lead to punishment. Traditionally, this social order has been perceived, particularly from a Western standpoint, as a construct crafted by a sovereign authority, expressed through commands or norms backed by the threat of sanctions for non-compliance. Since the 17th Century and the constitution of the Westphalian architecture, lawyers have primarily directed their attention toward States, which have been granted the ultimate authority as sovereigns within their respective territories. Over time, we have developed the belief that States’ presence ensures a certain level of order, while their absence results in chaos and disorder.
The Al Hassan case represents an opportunity to challenge this understanding of social dynamics from an international legal perspective. In a world in which non-State armed groups (NSAGs) sometimes offer a degree of stability in the territories they control, subjecting inhabitants to their own laws and regulations and acting as de facto authorities, the International Criminal Court (ICC) Trial Chamber will deal for the first time since its establishment with NSAGs’ governance and normative activities through the prism of international law. In that context, this post aims to discuss (domestic) law-making activities by NSAGs and their implications for detention operations by these non-State entities.
Non-State Armed Groups’ Laws in Context
Certainly, in the State-centric system we live in, reflecting on the possibility of NSAGs adopting laws and regulating behaviors sounds farfetched. For NSAGs, as well as for the estimated 64 million individuals living under their exclusive control, this is an everyday reality. A study published in 2016 revealed that between 1950 and 2006, 37% of groups have passed laws and established “order institutions.” NSAGs have relied on these laws to detain individuals, set up judicial or quasi-judicial bodies, conduct trials, provide education and health care services, collect taxes, and even issue birth and death certificates within territories under their control. In numerous conflict situations, these mechanisms have allowed individuals to carry on with their lives. Often, their subjects have not noticed that the governing authority in place was not a recognized sovereign State, but rather a non-State entity with limited capacity to engage at the international level beyond basic humanitarian matters. Of course, this scenario can vary from conflict to conflict. Yet, the notion that what occurs in NSAG-controlled territories is exclusively ruled by chaos and disorder hardly reflects today’s empirical reality.
Unsurprisingly, the study of NSAGs’ normative endeavors has recently gained some momentum, with authors examining such practices through the prism of “legal pluralism” (p. 167-185). This school of thought understands that “in any one geographical space defined by the conventional boundaries of a nation state, there is more than one ‘law’ or legal system” (p. 805). Another commentator has in fact posited that NSAGs’ laws appear as “legal pluralism incarnate” (p. 12). Numerous NSAGs have indeed adopted their own laws, and examples can be found in the Communist Party of Nepal-Maoist in Nepal or the Sudan People’s Liberation Movement/Army. NSAGs have also relied on or adapted existing laws of the territorial State. In Sri Lanka, the Liberation Tigers of Tamil Eelam (LTTE) established the Tamil Eelam Penal and Civil Codes based on a mix of Sri Lankan, Indian, and British law. The National Transitional Council (NTC) of Libya has referred to the Libyan Criminal Code, and the “Charter” adopted by the “Autonomous Administration” of north-east Syria affirms that Syrian criminal legislation will apply unless it directly contradicts the principles included therein (Art. 88). It is also extensively documented that NSAGs have applied Sharia law and religious interpretations to their own members and to individuals living under their control in several conflict settings (here, here, here, and here).
Non-State Armed Groups’ Laws under Scrutiny
Some of these dynamics have been the focus of attention in the Al Hassan case. The fact that NSAGs adopt “laws” to rule the life of individuals placed under their control was explicitly addressed on various occasions during the closing statements and by the Pre-Trial Chamber I (PTC) in the Confirmation of Charges Decisions. The PTC’s attention on this issue came about because it had to deal with two specific situations: (i) the reference to “lawful sanctions” in the crime against humanity of torture; and (ii) the war crime of passing sentences without a prior judgment rendered by a “regularly constituted court,” accompanied by the judicial guarantees generally recognized as essential.
Regarding the former, the PTC noted that the meaning of the term “legal sanctions” in the definition of torture enshrined in Article 7 of the Rome Statute has been the subject of debate in legal scholarship, specifically on the question of whether it should be interpreted as being in line solely with “national law” (understood in this context as State law), or with national law to the extent that it aligns with international law (para. 240). By supporting the second alternative, the PTC concluded that it would be “unnecessary” to engage in a discussion whether NSAGs can be considered “capable or incapable of issuing ‘legal sanctions’ within the legal framework established by Article 7 of the Statute” (para. 250).
When reflecting on the war crime of passing sentences without respecting certain minimum judicial guarantees, the PTC highlighted that Ansar Dine/Al-Qaida in the Islamic Maghreb (AQIM), through the Islamic Tribunal of Timbuktu, would rely on religious interpretations of Sharia law to punish individuals and “settle disputes.” Furthermore, from August 15 2012, this Islamic Tribunal and other local institutions had at their disposal a document that outlined “mandatory instructions” on how to interact with the civilian population and manage “violations of the rules established by Ansar Dine/AQIM,” which also contained specific procedures to be followed in such cases (para. 134).
Importantly, to determine if the Islamic Tribunal was a “regularly established court” as required by Article 8(2)(c)(iv) the Rome Statute and Common Article 3 to the Geneva Conventions, the PTC stated that its legal basis was neither relevant nor necessary for the case in question (para. 482). Instead, based on the elements of crimes, it claimed that the notion of “regularly constituted court” should be interpreted as meaning that it provides the essential guarantees of independence and impartiality (para. 376). In the PTC’s view, emphasis should be placed on the tribunal’s ability to conduct a fair trial rather than on how it is established (para. 376). Given the argument put forward by the International Committee of the Red Cross (ICRC) (and included in the defense’s submission, para. 254) that NSAGs’ courts could be regularly constituted “as long as they are constituted in accordance with the ‘laws’ of the armed group” (para. 728), it is expected that the Trial Chamber will examine this issue as well. The findings will certainly inform forthcoming discussions about NSAGs’ exercise of public prerogatives in non-international armed conflict (NIAC), particularly those related to the administration of justice and the relevance of these non-State entities’ laws.
Non-State Armed Groups’ Laws as a Basis for Criminal Law Detentions
Despite the fact that the PTC decided that an examination of Ansar Dine/AQIM’s legal frameworks was not necessary, it described how some of the penalties imposed as a result of the judicial processes led to individuals’ deprivation of liberty for the alleged commission of “common” crimes (i.e., crimes as defined by Ansar Dine/AQIM in their own laws) (paras 268-338). Of course, Ansar Dine/AQIM are not the only NSAGs that have detained individuals on criminal grounds after an arrest warrant was issued by an “official” authority. Groups have undertaken this type of detention across the globe. As a result, in these final paragraphs I will offer some reflections on this specific subject.
From a legal perspective, international humanitarian law (IHL) does not provide an explicit basis for NSAGs to deprive individuals of their liberty for criminal reasons. It thus remains unclear where such a basis can be found. Detention for the commission of criminal acts is nonetheless envisaged. The ICRC has stated that criminal law detentions are indeed regulated by the IHL of NIACs, and that the reference in Common Article 3 to the “passing of sentences and the carrying out of executions” alludes to criminal law procedures (para. 712).
In a recent study on detention by NSAGs, the ICRC provided further information on this type of detention. It defined them as the “detention of a person who is suspected of having committed a crime, is awaiting trial or sentencing, or who has been convicted of a crime” (p. 11), adding that “[n]o one may be accused or convicted of any act or omission which did not constitute a criminal offence under the law applicable at the time it was committed; nor may a heavier penalty be imposed than that which was applicable at the time the criminal offence was committed” (p. 58). The ICRC also pointed out that “[n]o one may be convicted or sentenced except pursuant to a fair trial affording all essential judicial guarantees” (p. 60).
In a similar sense, Article 6(2)(c) of the 1977 Additional Protocol II, which the PTC referred to together with international human rights law when examining the Islamic Tribunal’s judicial guarantees (para. 383), applies “to the prosecution and punishment of criminal offences related to the armed conflict.” This provides that “[n]o one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under the law, at the time when it was committed.” It also affirms that “[a]nyone charged with an offence is presumed innocent until proved guilty according to law” (emphasis added). Importantly, the ICRC 1987 Commentary to this provision confirms “the possible co-existence of two sorts of national legislation, namely, that of the State and that of the insurgents” (para. 4605).
Considering that NSAGs do adopt laws regulating the behaviors of individuals living under their control, it can be argued that there is an increasing acknowledgment that NSAGs may have some sort of legislative authority to adopt criminal laws (or adapt those already applicable) and conduct trials dealing with criminal matters. Of course, this should not be equated to any recognition of the legitimacy of such processes, but simply seen as describing the fact that they do exist and must respect certain minimum safeguards to prevent violations of international law. Consequently, as to the question of the legal basis for criminal law detentions, it would seem paradoxical if, under international law, NSAGs were legally allowed to (or at least not prevented from) prosecuting and declaring an individual to be guilty of a crime under their own laws but not be permitted to detain them as a result of such judicial process. Certainly, in order to detain and conduct the respective trials, the NSAG in question must have laws that respect the relevant procedural guarantees, including a review mechanism for criminal detention.
Concluding Thoughts
I do not know if the Trial Chamber will consider the legal framework governing criminal law detentions resulting from decisions delivered by the Islamic Tribunal of Timbuktu, in particular because “unlawful confinement” is a war crime only in international armed conflicts, as per Article 8(2)(vii) of the Rome Statute. Yet, given the number of NSAGs depriving individuals of their liberty around the world, including for criminal reasons, and how protecting those detainees is a matter of humanitarian concern, I expect more (and more thorough) discussions to happen on this subject-matter soon.
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Ezequiel Heffes is the Director of Watchlist on Children and Armed Conflict in New York..
Photo credit: Marietta Amarcord via Wikimedia Commons
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