New article: The application of human rights law to everyday life under rebel control

About the author(s):

Katharine Fortin

Katharine Fortin is an Associate Professor at Utrecht University where she teaches IHL and IHRL. Before joining Utrecht University, she worked at the ICTY, ICC and Norton Rose Fulbright. She is the author of The Accountability of Armed Groups under Human Rights Law (Oxford University Press, 2017) which won the 2018 Lieber Prize. She has written widely about the framework of law that applies to armed groups in non-international armed conflicts and is one of the editors of the Armed Groups and International Law blog.

My article on The Application of Human Rights Law to Everyday Life under Rebel Control has recently been published by the Netherlands International Law Review and is available via open access. In the article, I draw upon social science literature to offer a new assessment of the normative value of human rights law vis–à–vis international humanitarian law in territory under armed groups’ control. The research presented in the article has emerged out of research conducted for a larger study on armed groups and human rights law that will be published by Oxford University Press in 2017.

In the article, I explore the notion of ‘governance‘  in political science literature, demonstrating that armed groups engage in governance activities more than lawyers often acknowledge. I demonstrate that governance activities by armed groups engage in law enforcement activities in a manner that is much more nuanced than is often noted in legal literature. I also argue that while legal literature tends to present law enforcement activities and territorial control in binary terms (i.e. armed groups are either State-like or non-State-like, territory is either controlled by the State or the armed group, law enforcement activities are either provided by the State or the armed group), research from political scientists shows us that the provision of law enforcement activities by armed groups is a complex phenomenon that is hard to categorise in absolute terms. Political science literature repeatedly demonstrates that governance structures in areas under rebel control are often more complex than it is often thought, with input from, and alliances between, multiple players including armed groups, non-governmental organisations (NGOs), religious leaders and the State.

I also present  the idea that ‘everyday life‘ continues in conflict zones, more often than it was once thought. Indeed, it is increasingly noted in research emerging from political sciences and anthropology that the experience of everyday life in times of armed conflict has been all too often excluded from empirical research. Instead, there has been a general tendency for an analysis of non-international armed conflicts to be conducted in a top-down manner, focusing mainly on the identification of the parties and their motivations. As a result, the dominant accounts of armed conflict have tended to focus on how individuals living in their midst cope with violence as victims. In order to redress this balance, a growing body of researchers have taken what has been termed a ‘micropolitical’ approach to armed conflict, which focuses on the social dynamics of daily life.  A micropolitical approach concentrates on how individuals and groups utilise formal and informal power structures in order to achieve their goals within organisations. The research that has emerged from this bottom-up approach has radically challenged dominant narratives of armed conflict and adjusted the image of the individual’s role within it. One of the key observations emerging from micropolitical studies is the idea that individuals retain a large degree of agency in the midst of armed conflict.

Taking these two ideas as my starting point, I consider how international humanitarian law and human rights law can be applied in a complementary manner to regulate the everyday life of civilians who are not involved in hostilities. I argue that that while it might be tempting to imagine that concerns relating to rights such as the freedom of movement, the right to work or protection from common crime are completely displaced by considerations of physical security and survival in times of armed conflict, in reality this is often not the case. I also argue that the nexus test which has been developed in the context of jurisdiction decisions in international criminal law can provide helpful guidance on where the parameters of international humanitarian law vis-a-vis human rights law should be drawn.

Footnotes found in the original article.