Organizing Rebellion Symposium: Overcomplicating organisation? Is there really a distinction between the IHL and IHRL organisation threshold?

About the author(s):

Daragh Murray is a Senior Lecturer at the University of Essex School of Law & Human Rights Centre, and author of Human Rights Obligations of Non-State Armed Groups (2016).

Organising Rebellion: Non-State Armed Groups under International Humanitarian Law, Human Rights Law, and International Criminal Law should be essential reading for anyone working on issues relating to conflict classification, or the role of non-State armed groups. I have prepared a more detailed review highlighting the many strengths of the book, and this is forthcoming in the International Review of the Red Cross.

The focus of this post, however, is to challenge and explore the apparent distinction drawn in Organizing Rebellion between the baseline level of organisation required for an armed group to be subject to obligations under international humanitarian law (IHL) or international human rights law (IHRL), and the linking of obligations to organisational capacity. In raising this issue my concern is twofold. First, that any such distinction is not fully reflective of the actual content of the obligations imposed under each body of law. Second, that this distinction introduces unnecessary additional complexity into an already complex area; this may pose difficulties with respect to practical application. This post looks at the organisational framework developed in Organizing Rebellion, whereby the scope of international obligations imposed is dependent upon factors such as territorial control, governance infrastructure, military capacity, and internal discipline.

The degree of organisation required to give effect to obligations under IHL and IHRL

It is generally accepted that different levels of legal obligations are imposed on armed groups dependent upon the circumstances in which they operate. For example, under IHL armed groups party to an armed conflict are either subject to obligations imposed by common article 3 and customary IHL, or obligations imposed by common article 3, customary IHL and Additional Protocol II. As I, and others have argued similar distinctions should arguably exist with respect to the degree of obligations imposed on armed groups under IHRL. Armed groups exhibit significant differences in terms of the degree of control exercised over territory or populations and it is therefore appropriate that these differences are recognised, and varying degrees of IHRL obligations imposed. Organizing Rebellion agrees with this approach.

The question is whether these differences in the scope of obligations imposed on armed groups should be linked to an armed group’s organisational structure. In my opinion (a) all armed groups must demonstrate a baseline level of organisation in order to be subject to international obligations, and (b) this baseline is the same irrespective of whether the source of these obligations is IHL or IHRL. That is, armed groups must possess a sufficiently sophisticated organisational structure in order for international law to become applicable in the first instance. After this point the difference in organisational structures required to give effect to further obligations – under either IHL or IHRL – is one of degree, not substance.

For me, the baseline level of organisation required to be subject to international obligations is demonstrated by the existence of an independent will (here, chapter 2). This is characterised by (some form of) central command structure, capable of enforcing internal discipline, or internal rules in a non-military context (here, chapter 3). This ability to enforce internal discipline requires, in turn, the ability to develop organisational plans or policies; i.e. at its most simple, what rules will you enforce and how will you enforce them. Once this independent will is in place, an armed group can – in principle, but dependent upon the degree of investment in organisational structures – give effect to the full spectrum of obligations that may be imposed on armed groups under both IHL and IHRL.

This is conclusion is not unanimously held. A principal objection arguably emerges from confusion as to the nature of the different types of obligations imposed, under both IHL and IHRL. For example, IHRL is often understood as imposing two types of obligations, typically referred to as ‘negative’ and ‘positive’ obligations. Negative obligations are understood as requiring an entity to refrain from engaging in an activity that will result in a violation of human rights. As such, they are considered to be relatively straightforward obligations, capable of being respected by relatively unsophisticated armed groups. The obligation to respect IHRL is typically regarded as falling into this category. Positive obligations, on the other hand, are understood as requiring active measures to fulfil a human right. As such, they are considered to require a greater degree of organisational sophistication. The obligations to protect and fulfil are typically regarded as falling into this category. In IHL similar distinctions are sometimes made between the ‘basic’ obligations imposed by common Article 3, and the more advanced obligations imposed by AP II.

This is not an accurate dichotomy, however. Potential human rights harm is not always immediately evident and once the decision is made to undertake an activity (as opposed to refraining from acting at all) then active planning and analysis will inevitably be required in order to determine whether a particular course of action is likely to result in a human rights violation, or not. It is only on the basis of this planning/analysis that an armed group can then decide to undertake, or refrain from undertaking, a particular course of action, thereby giving effect to their obligation to respect. This conclusion is not unique to armed groups. In a corporate context, businesses’ responsibility to respect gives rise to an obligation of due diligence and giving effect to this obligation clearly requires active measures.

Examples from both IHL and IHRL demonstrate the problem with a rigid negative/positive dichotomy. Customary IHL imposes a number of obligations relating to the precautions required in attack, and these are applicable to all armed groups party to an armed conflict. Many of these obligations could be considered ‘negative’; i.e. do not attack civilian objects, do not launch attacks expected to cause incidental harm that would be excessive  in relation to the concrete and direct military advantage anticipated. However, giving effect to these obligations requires positive measures. For instance, calculating proportionality is a complex task that may depend on active measures including reconnaissance of the target, the development of an intelligence picture, consideration of alternative means and methods, analysis of the likely consequences of the attack, and analysis of the concrete and direct advantage anticipated. Similarly, the obligation to respect IHRL requires an evaluation of the human rights harm that may result from a particular action. If an armed group establishes a roadblock preventing transit through a particular area, the obligation to respect requires that they examine the likely knock-on effects: the potential human rights harm is not restricted to the immediate impact on freedom of movement. For example, the roadblock may affect access to health or education facilities potentially resulting in a violation of those rights. Satisfying the obligation to respect in this instance will therefore require active measures, potentially including an examination of the area, the identification of alternative facilities or access routes, and so on.

Importantly, although the specifics of these obligations differ – a proportionality analysis under IHL is clearly different from an obligation to respect analysis under IHRL, and will require different expertise – the organisational structures necessary to give effect to these obligations are similar. They require an ability to plan, to analyse situations and impacts, and to coordinate activity. Although the content of the obligations are different, the mechanisms or structures necessary to give effect to them are not.

Ultimately giving effect to these ‘basic’ IHL or IHRL obligations requires a similar degree of active planning and analysis. This is the essence of the organisational criterion required in order to possess international obligations in the first instance: the ability to develop an organisational plan or policy, and to have that plan or policy implemented. As such, saying that a higher level of organisation is required for IHL obligations than for IHRL obligations (or vice versa) does not seem to reflect the fact that a similar organisational structure is actually necessary to give effect to the obligations under both bodies of law. This indicates that, once an organisational structure capable of giving effect to obligations under international law is in place, the application of further obligations should not be dependent upon an armed group’s organisational capacity. Rather, it should be linked to the broader context in which the armed group operates, specifically the degree to which it has displaced State authority.

The role of capacity?

Organizing Rebellion, however, links organisational capacity to the application of international obligations. A number of markers of organisational capacity are identified, namely the existence of governance infrastructure, territorial control, military capacity, and internal structure/discipline. The application of international obligations is then linked to these structures. For instance, different IHRL obligations are applied to armed groups exercising de facto control (who are not required to demonstrate governance infrastructure) and groups exercising quasi-governmental authority (who are). Equally, different internal structures are linked to the application of APII and common Article 3.

This may be overcomplicating the situation. While these elements serve as important indicators of organisation, the question is whether there is a distinction between, for example, governance infrastructure and military capacity or whether these are both just manifestations of organisational ability. For example, an armed group exercising de facto territorial control outside an armed conflict will be required to ensure the effective distribution of resources. Should a medicine shortage arise in a particular area, they must ensure that they are aware of this shortage, and that they facilitate delivery of the required medical supplies (illustrative of governance infrastructure). Similarly, an armed group engaged in an armed conflict will be required to oversee military operations throughout the entire area of hostilities. If additional personnel are required in one area, or additional types of weaponry are required in another, they must ensure that they are aware of these battlefield realities, and distribute resources accordingly (military capacity). Is there a real distinction in the organisational capacity required to undertake these two activities, or are they both not just examples of a competent organisation?

The concern is that, in addition to adding an unnecessary degree of complexity, this classification system places an inappropriate focus on an armed groups’ investment in its own organisational structures when determining the application of international obligations. As has been suggested above, the organisational structure necessary to give effect to basic obligations under either IHL or IHL is, substantively, the same as that necessary to give effect to the full spectrum of obligations. The question is only one of degree. Put simply, the organisational structures necessary to oversee an armed group of 100 members exercising intermittent control over 1,000 uninvolved individuals are the same as the structures necessary to oversee an armed group of 10,000 members exercising stable control over 100,000 individuals. Enforcing internal discipline in both types of armed group will require the development of cohesive communication and control structures. The main difference is one of scale; e.g. in the number and type of personnel required to give effect to those structures.

The danger is that, if the application of international obligations is linked to an armed group’s organisational capacity – crudely put: the degree to which it has invested in its organisational structures – this may, in effect, let the armed group off the hook. For example, an armed group may exercise exclusive control over a particular territory and population, but may choose to focus its resources on the war effort without investing in governance infrastructure. If the application of obligations is linked to the armed group’s governance capacity, this armed group may avoid more extensive human rights obligations, to the detriment of the affected population.

This problem could be avoided by recognising that the same core organisational capacity is necessary to give effect to both IHL and IHRL obligations. The gradated application of both IHL and IHRL obligations could then be linked to the circumstances in which an armed group operates, namely the degree to which it has displaced State authority.

Of course, this approach reflects my own bias, and builds on my own work in this area. The reality is that none of these issues are fully resolved, and that none are without controversy. As work regarding the international regulation of armed groups continues to develop it is essential that we have these debates, that we test different theories and approaches, and that we collaborate to find the best way forward.

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