Organizing Rebellion Symposium: Translating the Organization Requirement into the Operational Context

About the author(s):

Laurie R. Blank is a Clinical Professor of Law; Director, Center for International and Comparative Law; Director, International Humanitarian Law Clinic, Emory Law School.

I am delighted to have the opportunity to contribute to this engaging online symposium on Dr. Tilman Rodenhauser’s impressive new book, Organizing Rebellion.  Tilman’s analysis of the notion of non-state armed group and the concept of organization is timely, sophisticated and remarkably thorough, resulting in what will no doubt be a go-to resource for many years to come. 

The first main section of the book provides a detailed analysis of the notion of organized armed group in the law of armed conflict (LOAC), primarily for the purpose of understanding and assessing the organization component with regard to classification of non-international armed conflict.  After a careful look at a range of approaches to this question, including the development of detailed indicia and factors through the jurisprudence of international and hybrid tribunals, Tilman offers what he terms a “strictly functional interpretation” based on three criteria drawn from treaty law, jurisprudence and state practice: an organized armed group must be a 1) collective entity that 2) has the ability to engage in sufficiently intense violence and 3) the ability to ensure respect for basic humanitarian norms.  Of course, the interpretation and application of these criteria or conceptual categories is where the interesting questions and challenges lie, but at a minimum, this approach is sober and rational — and extremely useful — on first glance.

At the same time, however, the analysis throughout the LOAC section of the book appears best situated in the hands of an external actor assessing the existence and nature of a given conflict once the conflict is underway or completed — generally in the context of a tribunal, court or commission of inquiry.  The fact-intensive nature of an examination of the characteristics of an organized armed group and its capabilities and organizational and leadership style are best suited to these enterprises.  But adjudicatory or fact-finding bodies are not the only entities that seek to and must assess the existence and nature of a conflict, raising the question of who argues and advocates, and assesses and asserts positions regarding conflict classification, and in what circumstances. 

Indeed, states faced with growing violence, attacks and other threats demanding forceful responses must determine not only the available and best options for addressing those attacks and threats from a strategic, operational and tactical perspective, but also the relevant legal parameters for such responses.  To do so, the state must therefore assess and determine the applicable law — that is, determine whether the situation constitutes a non-international armed conflict, such that LOAC applies, or does not yet rise to that level, in which case the state is operating under the ordinary law enforcement paradigm.  The difference between the two legal regimes is stark, particularly with respect to the authority to use force and to detain, and highly consequential for planning and execution of any operations.

Reading Tilman’s deeply thoughtful and careful examination of the criteria and methods for identifying an organized armed group for purposes of the identification and classification of non-international armed conflict prompted, for me, the question of who assesses or asserts the existence of a non-international armed conflict? And when, and based on what standards and what sources of information? 

Translating the notion of organized armed group — or the “organization” criteria — into the operational context thus raises a number of interesting questions and challenges. First, consider from the state’s perspective at the start or early stages of violence the three basic criteria Tilman presents as the core investigation regarding the organization criteria. A key question is how much the state needs to know about the workings of a non-state group to determine if it satisfies this basic framework to constitute a party to an armed conflict (which then, of course, is determinative not only for the existence of an armed conflict but also for essential issues such as status-based targeting, detention without charge, and so forth).

The state will, of course, have direct information regarding the intensity of the violence, which is a separate criterion for non-international armed conflict altogether.  With respect to the organization criterion, and the three factors Tilman highlights, the state will see the group’s capacity to engage in violence and will likely see or have significant insights into the group’s ability to launch concerted military operations.  In contrast, however, a state may not have any information — or access to information — about the group’s ability to ensure respect for basic humanitarian norms or even the group’s collective structure, in contrast to an external investigative body or tribunal during or after the conflict, which will have or seek access to the group and the community surrounding it in order to gather and assess such information. 

As a result, it is worth considering what are the appropriate presumptions regarding a state’s determination of the existence of non-international armed conflict and, the more specific sub-question, whether those fighting against the state constitute an organized armed group for the purposes of such conflict classification.  Is or should the state’s determination — including underlying assessments of any facts regarding its adversary — be accepted as the starting point for any analysis? Is there a presumption that the state’s approach is reasonable? Is there a reasonableness threshold for the state’s determination to be taken as presumptively valid? Or could the state be held to a different post hoc determination regarding the applicable law and thus its adherence to the law?

Consider how this particular set of questions might play out.  A state faces violence and unrest and in the course of its response, it reaches a determination that its adversary is sufficiently organized to qualify as a party to a conflict and the situation constitutes a non-international armed conflict.  The state then conducts its operations against the adversary based on the applicability of LOAC.  Fast forward months or even years and now a court or tribunal — national, regional or international — must address the jurisdictional question of whether an armed conflict existed at the time of the relevant conduct charged.  If the tribunal were to find that the adversary was not sufficiently organized to constitute an organized armed group and therefore no non-international armed conflict existed, either at all or at a particular time, what would be the effect on the state’s real-time determination to the opposite effect and the state’s conduct based on LOAC? What might seem to be the natural conclusion to such a finding — that the state was incorrectly applying LOAC and instead will be bound by and held accountable according to international human rights law after the fact — presents a host of challenges.

First, if a state’s assessment were reasonable at the time and based on the information available to the state, such assessment should be deemed presumptively valid.  Any other approach would divert from LOAC’s consistent reliance on the reasonable commander and the reasonableness of decisions at the time they were taken.  A state would be unable to reach a necessary determination of law applicability if it constantly feared that future access to presently inaccessible information, or new assessments of existing information, would effectively invalidate and even criminalize its actions based on currently available information and analyses.

Second, and equally problematic, in the absence of a presumption that a state’s reasonable analysis should stand, states will be forced to err on the side of not classifying situations as armed conflicts at all for fear of being “overruled” later on.  As a consequence, states may be forced into a space where they must respond to violence and other threats, but only within the international human rights law paradigm, no matter how intense the violence or how organized the adversary, because they will not be able to rely on their real-time assessments for future determinations of law compliance and accountability.  Although on first glance such a result might seem more protective, because international human rights law is significantly more restrictive with regard to the use of force and detention, the ultimate effect will be to weaken the international human rights law paradigm by stretching it to allow for operations otherwise governed by LOAC because states will continue to respond to threats as needed and the human rights law paradigm will be forced to adjust accordingly.  The net effect is to undermine protections, by leaving human rights law less equipped to serve its core purpose and potentially stretched beyond recognition over time.

A methodology for identifying and classifying armed conflict, particularly non-international armed conflict, is essential.  Allowing states to ignore the existence of a conflict — and thus the applicability of LOAC — or to be overly willing to present operations as conflict so as to harness the authorities of LOAC, is highly problematic and goes against some of the central tenets of the 1949 Geneva Conventions framework.  The questions and concerns raised here are in no way a criticism of the task and tools of conflict classification; indeed, as I and co-authors have written elsewhere (here and here), conflict classification is foundational and fundamental to the effective application, implementation and enforcement of LOAC.  But as we explore and sharpen these systems and methodologies, it is worth considering how they will be affected by, and will affect, the perspective of the state engaging in operations in real-time and having to make and act in accordance with such classification determinations in the moment.

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