The organisation(al) requirement under IHL and ICL

About the author(s):

Rogier Bartels

Rogier is a researcher at the Netherlands Defence Academy (NLDA) and works at the Dutch National Prosecutor’s Office. He holds LL.M-degrees from Utrecht University and the University of Nottingham. Before taking up his current positions, he was an associate legal officer in Chambers at the International Criminal Tribunal for the Former Yugoslavia, and a legal adviser at the International Humanitarian Law Division of the Netherlands Red Cross.

Rogier is an adjunct-lecturer at the Hague University of Applied Sciences, where he teaches international humanitarian law, and he co-convenes the Hague Initiative for Law and Armed Conflict.

In the past, Katharine and I have addressed the organisational or organisation requirement that forms part of the (lower) threshold criteria (of intensity and organisation) for the existence of a non-international armed conflict on the blog (see here and here). For the purposes of the International Criminal Court, crimes against humanity also have an organisation requirement, as addressed here. We have now published an article together in the Journal of Conflict and Security Law (forthcoming in Volume 21(1), but already available in advance access) that looks at both these organisation requirements.

Our article follows up on my participation in a very interesting round table/conference, organised by the London School of Economics, on “Law, Justice and the Security Gap”. During this interdisciplinary discussion, I presented my thoughts about the possible impunity gap that could arise, if in situations of insecurity, during which non-State actors use violence, the scope of war crimes and crimes against humanity are not sufficiently adjusted to each other; inter alia, with regards the organisational or organisation requirement that forms part of both these scopes (at least for the purposes of the ICC).

Some of the contributions to this LSE meeting are now being published in a special issue of the aforementioned journal. In their editorial, LSE’s Mary Kaldor, Christine Chinkin and Iavor Rangelov (who also chaired the round table and for the editing of the conference publications were joined by Sharon Weil from Sciences-Po) observe that

The world is in the midst of a profound change in the way that security is conceptualised and practiced. Up until 1989, security was largely viewed either as ‘internal security’ or as ‘national’ or ‘bloc’ security and the main instruments of security were considered to be the police, the intelligence services and the military. This traditional view of security fits uneasily with the far- reaching changes in social and political organisation that characterise the world at the beginning of the 21st century.

What we call the ‘security gap’ refers to the gap between our national and international security capabilities, largely based on conventional military forces, and the reality of the everyday experience of insecurity in different parts of the world. To some extent, public security capabilities are beginning to adapt to the changing nature of insecurity—with new doctrines or new military–civilian capabilities. But it is also the case that the gap is being filled by private agents—warlords, militias, private security companies, NGOs, for example— and, even though some forms of hybrid security provision may improve people’s lives at least temporarily, this new market in security may have dangerous implications.

In other contributions to the special issue, Sharon Weil addresses how national courts, mainly those of Israel and the US, have dealt with targeted killings, whilst Iavor Rangelov assesses whether international criminal justice has brought “Liberal Peace” in the Balkans. Colin Murray looks into the UK’s counter-terrorism jurisprudence.

In our article “Law, Justice and a Potential Security Gap: The ‘Organisation’ Requirement in International Humanitarian Law and International Criminal law”, Katharine and I first set out how the organisation requirement for NIACs has been analysed in the case law of the ad hoc tribunals, and how certain factors and indicators have been identified by the ICTY. To demonstrate that situations of significant violence can exist, without the level of organisation of the armed groups involved rising to the required level for the application of international humanitarian law, we analyse the early stages of what since has become the Syrian conflict. In early 2012, significant violence was used by either side, yet only in July 2012 the ICRC considered the Free Syrian Army sufficiently organised to speak of a NIAC and the applicability of the relevant rules of IHL. In the second part, we look at the “organizational policy” requirement for crimes against humanity, as included in Article 7 of the Rome Statute, which requires that the “widespread or systematic attack directed against any civilian population” to be “a course of conduct involving the multiple commission of [prohibited] acts […] against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack”. We conclude that

the ‘organisation’ threshold for crimes against humanity should be lower than that required under international humanitarian law. In particular, there should be no requirement that the armed group is operating within the context of a non-international armed conflict. Likewise, while it seems likely in the ‘crimes against humanity’ context that it will still have to be proved that the armed group does in fact constitute an ‘organisation’ rather than simply a loose collection of individuals, there is no immediate need to prove this with relation to features such as responsible command or established hierarchy. Instead, there seems to be a compelling argument that the ‘organisational’ requirement in the crimes against humanity context should be proved by the group’s ability to organise coordinated widespread or systematic action.

This is so, because “[i]t is important that in situations that may fall below the threshold of non-international armed conflict, acts of a sufficiently widespread and systematic scale can be prosecuted as crimes against humanity; not only when carried out by government forces, but also when committed by non-State actors. In situations where both the government and armed groups are allegedly responsible for abuses, the law should allow for both sides to be prosecuted – not just one of the two.”