Organizing Responses – a (partial) reply to the blog symposium

About the author(s):

Tilman Rodenhaeuser

Dr Tilman Rodenhauser holds a PhD from the Graduate Institute of International and Development Studies in Geneva. He is currently Legal Adviser at the International Committee of the Red Cross (ICRC), and worked previously with the German Red Cross, DCAF, and Geneva Call. The views expressed on this blog are those of the author alone and do not engage the ICRC, or previous employers, in any form.

I feel truly honoured to see such rich posts by a range of great scholars and practitioners, each raising important and though-provoking questions on and criticism of my book Organizing Rebellion. This leaves me with the intimidating task of ‘organizing responses’. While I will not be able to engage with each question or disagreement (and I must admit that I do not necessarily have answers to all issue), I will respond to some points (without suggesting that these are more important than others). In fact, each contributor would deserve a full post in response! Following the structure of the book, I will first respond to IHL issues, and then turn to human rights and international criminal law.

Non-State parties to armed conflicts – more than the ability to engage in violence?

In Organizing Rebellion, based on law and practice I identify three strict criteria (as opposed to the five groups of indicative factors established in by the ICTY in Boskoski, para. 199) for classifying non-State armed groups as parties to armed conflicts. I conclude that a group needs to be (1) a collective entity (2) able to engage in sufficiently intense violence and (3) able to ensure respect for fundamental humanitarian norms. 

Laurie Blank poses a number of important questions on which actors need to determine whether a group is sufficiently organized, when, and according to which standard of certainty. She underlines that those classifying a conflict will necessarily draw conclusions based on the information available at the time. Among the three criteria I identify, the one that Laurie rightly points out as normally most assessible is whether a group is able to engage in sufficiently intense violence. In contrast, information on the internal organization of an armed group is more difficult to come by. As in my view the current state of international law – whether States or other actors classify a situation while it is unfolding or with the benefit of hindsight – does not allow to reduce conflict classification to an assessment of the intensity of violence, I see the dilemma that Laurie points out: should a State be given the benefit of the doubt if its classification was ‘reasonable at the time and based on the information available’; or should the State be required to err on the side of caution unless it has sufficient proof of all criteria? While I do not have a definite answer, Laurie’s reference to the ‘reasonable commander’ standard makes sense to me: parties to the conflict – and other actors engaged in conflict classification – have to take decisions at the time and in the context in which they operate. At the same time, this standard also means that if the available facts do not allow for the conclusion that a situation amounts to an armed conflict, operations have to be conducted in conformity with human rights law only.

Marco Sassòli engaged especially with the criterion that armed groups need to be able to ensure respect for fundamental humanitarian norms. He remarks that I remain rather vague on which IHL rules are the ‘fundamental’ humanitarian norms that armed groups must be capable of respecting (and I confess this is correct). This is because I do not think that entering into a rule-by-rule assessment is necessary for the purposes of conflict classification. The ability to ensure respect for fundamental humanitarian norms comes down to the ability of a group’s leadership to impose discipline: in practice, ensuring that members of the group do not share intelligence with the adversary (an operational decision, no required by IHL), or ensuring that they do not torture a detainee (required by IHL), is essentially a question of discipline. In other words, for the purposes of conflict classification, IHL requires that armed groups are sufficiently organized to ensure respect for prohibitions set out in IHL, including not to pass sentences without a fair trial, not to pillage, and not to deprive anyone of their liberty in an arbitrary manner or without basic guarantees. While this approach is in line with the practice and scholarship I examined (pp. 41-42; 87-92), Marco is right in pointing out that binding armed groups by IHL raises very practical and partly unresolved issues, such as how a commander can comply with the obligations deriving from ‘command responsibility’ without having the capacity to conduct trials necessary to punish serious IHL violations?

How to merge two or more armed groups into one party to conflict?

Katharine Fortin takes up my arguments on when two or more different armed groups can be legally considered one party to conflict. As she points out, this is a very topical but underexplored issue. Katharine underlines that the issue can arise in at least two contexts: (1) at the outset of a conflict, there might be different groups (not yet party to the conflict) joining forces. Or (2), at a later point, the question may arise whether a certain group (newly arising or already existing) can be considered to be part of (or ‘belonging to’, or being ‘under the control of’) an existing non-State party to the conflict. International law does not provide us with clear answers on when different armed groups may considered as merging into one party to conflict. I argue that – absent a very clear C2 structure – in order to qualify as one party to a conflict, there needs to be either a form of leadership in a horizontally structured group (context 1) or the existing party to the conflict (context 2) that exercises what I term ‘operational coordination’ and ‘strategic authority’ (see pp 81-85; 101-104, as well as here) over either the subgroups or the other armed group. I suggest only one approach because after all, in both contexts the question is how to establish a sufficiently strong link between one or more non-State armed groups.

Different degrees of ‘organization’ in IHL and human rights law – really?

A number of contributors commented on armed groups under more than one field of international law. Before looking at some of these comments, I need to concede to one point already: I have written about ‘armed groups’ under IHL, human rights, and criminal law. However, Marco is probably right that the fact of being ‘armed’ is only a condition sine qua non under IHL.

Daragh Murray wonders whether there really is a difference between the degree of organization necessary to be party to an armed conflict and that of being potentially bound by human rights obligations (I say ‘potentially’ because I do not conclude or claim that all armed groups have human rights obligations (yet) as a matter of law). He suggests – in line with his inspiring book – that the basic level of internal organization is essentially the same for armed groups under IHL and human rights law; however, the scope of obligations of a group would depend on the context in which the group operates.

As I explain at the outset of Chapter 6 (p. 147, but admittedly I should have repeated this more often), in order to have possible human rights law obligations, armed groups should be a collective entity able to ensure respect for the applicable law. I do not see great differences between these criteria and similar ones under IHL; hence, one could say that the core is the same (however, IHL also requires that a group is able to engage in intense violence, which is not the case under human rights law). Afterwards, in my view the degree of possible human rights obligations – in particular obligations to protect and to fulfil a wide scope of human rights – depends on the context in which the group operates (territorial control?) and the capacity or power of the group (is it exercising quasi-governmental authority?). While I tend to agree that respecting basic IHL and human rights law does not necessarily require a different kind of capacity, maintaining law and order or fulfilling the right to health under human rights law is a different ball game.

Drawing on her excellent book on accountability of armed groups under human rights law, Katharine Fortin further suggests that when determining possible human rights obligations, we may not need to draw a bright line between armed groups exercising de facto control over territory and those exercising quasi-governmental authority. And I agree: I do not see the three categories I suggest as ‘silos’ with thick walls but rather as signposts or analytical tools that provide orientation when reflecting about possible human rights obligations of a wide spectrum of groups. On this scale, however, I do see significant differences in the scope of possible obligations between groups gaining de facto, and often short-term, control over a village during a conflict, and groups exercising State-like authority in defined territory.

In this respect, in response to Ezequiel Heffes’ important – and to my knowledge unexplored – point on whether the same armed group could have different human right obligations in different operational contexts, I would probably argue that it can – depending on the degree of control it exercises. To some extent, this would be in line with the view that States have different degrees of human rights obligations depending on whether they operate at home or extraterritorially. In contrast, if an armed group is involved in an armed conflict reaching the threshold of Additional Protocol II, I would see the group bound by applicable IHL rules in the whole territory of the State in which it operates.

One challenge in writing about possible human rights obligations of armed groups is that there are few treaties that contain such obligations, and actual State practice – other than in UN fora – is rare. Similarly, the question of which weight to give to the practice and views of armed groups in the formation of international law remains as intriguing (as pointed out by Ezequiel Heffes) as it is unclear. While I see the significant value in working with armed groups to develop their codes of conduct (as done by the ICRC), in engaging groups to sign deeds of commitments (as done by Geneva Call), or developing action plans to protect children (as done by the UN), I would refrain from making clear findings on the international legal significance of armed group’s practice or commitments. I would, however, always stress their practical value to ensure respect for relevant norms.

From philosophy, to law, to synergies between possible human rights obligations and the obligation not to commit crimes against humanity

During my journey and attempt to make sense of legal definitions and the (short) history of international criminal law, I delved into philosophical writings on international crimes. When inquiring what makes a crime a ‘crime against humanity’, meaning what situations convinced States that certain crimes shall be criminalized under international law, I concluded that the essence of a crime against humanity is that large-scale and heinous crimes are committed against populations deprived of protection against these acts. This would mean that these crimes are either committed by States or State-like entities, or contexts in which the State is unable or unwilling to protect the victim population. Adejoké Babington-Ashaye takes issue with this finding, arguing that the societal context in which a crime is committed should not be a determining factor. And I agree with this legally speaking (as I do with most of her post!): I do not intend – and I hope I am clear on this in the book – to introduce another legal criterion or requirement characterizing crimes against humanity. From a philosophical point of view, however – and this means at a meta-level, not the level of the law – I am convinced that what makes a crime a ‘crimes against humanity’ is more than the fact that they are mass atrocities.

Mathias Holvoet further delves into the question of whether the obligation not to commit certain acts (which admittedly resemble human rights violations) as part of crimes against humanity would also suggest that relevant groups (or individuals?) have human rights obligations? I am not convinced that drawing parallels or synergies between international criminal law and human rights law is the best avenue to establish human rights obligations of armed groups. In my view, and I think Mathias agrees, the criminal acts underlying crimes against humanity or genocide are not criminalized (and therefore prohibited) because they are violations of the perpetrator’s human rights obligations but because of the contextual elements that elevate such acts into the realm of international crimes. Interestingly, Mathias nonetheless raises the question if there is not more to explore in the relationship between crimes against humanity and human rights law. And it seems there might be. For example, I argue that only entities that have an obligation to protect humans under their control (i.e. States and possibly State-like groups) can instigate crimes against humanity through a policy of tolerating relevant criminal acts. Moreover, the underlying acts of apartheid, arguably enforced disappearance, and persecution (if the latter is understood as meaning serious deprivation of fundamental rights) appear to require a certain degree of power and control over territory, which I do not think is the case for other acts. As a result, not all armed groups will be able to create an environment in which certain crimes against humanity can be committed.

Which genocidal crimes can (armed) groups commit?

Turning to armed groups and genocide, Sareta Ashraph inquires whether I believe that the drafters of the Genocide Convention deliberately drafted certain genocidal crimes in a way that implicitly requires ‘an organizational structure to accomplish the commission of crimes of such magnitude’ while deliberately omitting State involvement as a requirement for the commission of genocide. To be frank – I do not know, and the drafting history does not seem to tell us. My impression is that while the issue of State involvement as a legal requirement for the crime of genocide was discussed and dismissed, the drafters did not consider the issue of State or collective entity involvement when elaborating the underlying crimes. In this respect, I agree with Sareta that the rather open or general formulations included in the Genocide Convention provide some flexibility for judicial organs to apply the Convention to changing realities – such as new weapon or communication systems that seem to make the commission or instigation of certain crimes easier.

In this respect, Melanie O’Brien makes an important point by challenging my conclusion that while some of the underlying crimes of genocide will not need involvement of a State or State-like entity (killing or causing serious bodily or mental harm), others often do (namely ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction’, ‘imposing measures intended to prevent births within the group’, or ‘forcibly transferring children of the group to another group’). In fact, given the (fortunately) limited judicial practice on genocide, it is difficult to make very firm statements one way or another. While I do think that in all likelihood the latter crimes listed above need the involvement of an entity that exercises some form of control over the target group, I refrain from making categorical statements on this point (see p. 300), and I would not exclude that the carefully crafted examples Melanie provides could amount to genocide, if all contextual elements are met.

Last but not least Thank you – once again – to all contributors and to the editors of AGIL and Opinio Juris

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