About the author(s):
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.
This week, EJILTalk! has been hosting an interesting discussion of Daragh Murray’s book on the human rights obligations of armed groups (which we advertised on the blog a few months ago here). After an introduction by Murray, Jonathan Horowitz, Cordula Droege, and Marco Sassoli have commented on the book and Murray has been invited to respond.
First, full disclosure: many of you will know that my own book on the same topic is coming out with the Oxford University Press in 2017, so reading Murray’s book has been an pleasurable experience for me. Over the last five years Murray and I have clearly trawled through many of the same primary materials and puzzled over the same difficult questions. On many points Murray and I have come to similar conclusions, which is satisfying as it validates our separate conclusions. For example, we both agree that in instances where armed groups control territory there is a good legal argument to be made that armed groups are bound by human rights law. We also agree that an armed group’s obligations under human rights law should be graduated to match its normative capacity. But interestingly, we often reach and reason our conclusions in different ways.
Although covering the same broad topic, our books have different content and approaches. For example, in the second chapter of my book I evaluate whether IHRL has any added value vis-à-vis IHL and set out a ‘life goes on driver’ theory (see here for a further exposition of this elsewhere) which then returns later in the book. I also engage in a detailed historical analysis of the law on belligerency and insurgency, to understand how armed groups have traditionally acquired legal personality under international law and better understand the characteristics of that personality. We take different theoretical approaches when analysing how armed groups acquire legal personality under international law and draw different conclusions on how armed groups may be bound by customary international law . Unlike Murray, my starting point on this issue is that not all subjects of international law are bound by the same range of customary international law norms. In doing so, I develop a different set of arguments that provide practitioners with operational guidance about how to approach the problem of armed groups and human rights law.
Murray’s analysis is very good and his book is definitely to be recommended. In my view, the most fascinating part of his book is Part III where he painstakingly undertakes detailed operational analysis of how specific human rights obligations can be applied to armed groups in practice. In doing so, he analyses three distinct issues (i) prosecution (ii) detention and (iii) the right to health showing what armed group’s do on these issues and what role human rights law may play in their protection. In this section, he considers how different armed groups may be able to adhere to the corresponding human right obligations, by conducting an evaluation based on a combined analysis of legal framework together with the practice of armed groups. The question of how human rights law might be operationalised is one which has been given little attention until now, but is fundamentally important for the future.
There is no doubt that Murray’s book is an important addition to a question of ever-pressing importance in international law.