Life in rebel territory: is everything war?

About the author(s):

Elvina Pothelet

Elvina Pothelet is a Ph.D. candidate at the University of Geneva. Her dissertation is entitled “Searching for the ‘nexus’: a proposal to refine the scope of applicability of international humanitarian law and war crimes law”. In the past, she worked notably for the Geneva Academy of International Humanitarian Law and Human Rights, the ICRC and Diakonia.

The title of this post is intentionally provocative and of course the answer is no: not all aspects of life during war revolve around war. In rebel territory, as in state-controlled territory, common criminality persists, traffic accidents occur and people have needs that are unrelated to the conflict. This raises the question of how ordinary life is regulated during armed conflicts, especially in territories administered by armed groups. In particular, does international humanitarian law (IHL) – the branch of international law designed to regulate armed conflicts – apply to these issues and, if so, to what extent? In its latest “Challenges Report”, the ICRC suggests that all interactions between armed groups controlling a territory and the local population are “inherently linked” to the conflict and therefore governed by IHL, when relevant. I am grateful for the opportunity to discuss this aspect of the report.  

Relevance and applicability of IHL

The de facto administration of territories by armed groups (such as Ansar Dine in Timbuktu, Mali in 2012, the NDC-R in the DRC or the Kurdish-led administration in northeastern Syria) does not fall neatly within the current international legal framework. On the one hand, international human rights law (HRL) is relevant but its applicability to armed groups is debated; on the other hand, IHL does not explicitly address the issue: there is no “law of occupation” in non-international armed conflict (NIAC).

This is not to say that IHL is irrelevant to regulating life in these territories; as the ICRC report notes (p. 53), a number of important NIAC rules are relevant. For instance, common article 3 and APII prohibit murder, torture and other forms of ill-treatment (including sexual violence) as well as the passing of sentences without judgment by a regularly constituted court affording judicial guarantees; they impose minimum conditions of detention and an obligation to respect, protect and care for the wounded and sick.

A more delicate issue, however, is when exactly these IHL rules are applicable. It is clear that they are applicable in territories controlled by armed groups parties to a NIAC and are binding on these groups; it is also clear that they protect certain categories of persons: “persons taking no active part in hostilities” (common article 3(1)) and “all persons affected by” the conflict (for APII, per Art. 2). However, these general applicability conditions are insufficient to solve many “micro-applicability” dilemmas, i.e. whether a relevant rule is applicable to specific incidents or persons. Do these rules apply to all acts of ill-treatment occurring on a territory controlled by a party, including corporal punishment as a means of law enforcement (e.g. amputation for theft) and domestic violence? (Whether these acts are prohibited under domestic law or HRL is not at issue here; the question is whether they are prohibited under IHL). Does the IHL obligation of fair trial protect all accused prosecuted by a party to a NIAC, including if their offence is unrelated to the conflict, such as pedophilia? These and other questions suggest that there is a missing piece in IHL’s applicability puzzle.

The nexus requirement

This missing piece is the nexus. The nexus requirement was revealed in war crimes jurisprudence. Since war crimes are violations of IHL, a conduct can qualify as a war crime only if IHL applies to it in the first place. International and domestic courts have established that this requires a showing that the conduct had a link, or nexus, to an armed conflict (the ICC Elements of Crimes require that the conduct took place “in the context of and was associated with” an armed conflict). In my doctoral research dedicated to this notion, I explain why the nexus is indeed a condition for the applicability of most IHL rules – and not just criminalized rules of IHL – and highlight that this requirement takes different shapes (more below).

The nexus requirement is essential to refine our understanding of IHL applicability in territories under rebel control. If IHL applies only to events that have a nexus to a conflict, are ordinary life events occurring in these territories excluded from the scope of IHL? Should we consider instead that all such events are necessarily impacted by the conflict and, therefore, that IHL always applies at least when the armed group interacts with the population? Or is a more nuanced interpretation of the nexus warranted?

The ICRC’s low threshold of nexus

The ICRC’s position lies on one end of the spectrum and favors the broad applicability of IHL. According to the Challenges Report, “the way in which non-State armed groups exercise control over, and interact with, persons living in territory under their de facto control is inherently linked to the conflict in question”. The conflict “plays a substantial part in the group’s ability to control the lives [of the population] and the manner in which such control is exercised” and “[a]s a result, IHL applies and therefore protects persons living in” these territories (p. 53).

I understand this to mean that the nexus requirement is always satisfied in territories controlled by armed groups and that IHL automatically applies, at least as far as interactions between the group and the civilian population are concerned. Hence IHL would apply to all instances of ill-treatment involving the group (including committed as part of “law enforcement”), to all detentions and judicial proceedings, and every time the group (fails to) provide(s) health care in such territories.

It is likely that the format of the report did not allow for a detailed treatment of this question. Nonetheless, I will take the report at face value, for the sake of argument.

The ICRC’s view is certainly attractive from a practical perspective as it minimizes the number of applicability dilemmas (IHL always applies when the group interacts with the population); but there are also counter-arguments. First, one could challenge the factual claim that territorial control by an armed group is always “inherently linked to the conflict in question”. A group’s territorial control may predate the conflict and/or be unrelated to it. Imagine an armed group that took control of a territory in the course of an old conflict which ended with the area being granted autonomy; after years of peace, a fresh conflict breaks out between this group and the central government (or an enemy armed group). The group’s territorial control is not linked to this ongoing conflict and it would be odd to argue that all interactions with the population it has been administering for years are suddenly subject to IHL, even criminal proceedings against drug dealers. A similar reasoning would apply if an armed group operating in a failed State takes control of an area deserted by State authorities without using any armed force, i.e. without triggering an armed conflict: if this group is subsequently engaged in a NIAC – for instance against multinational forces intervening in the country – its territorial control is not “inherently linked” to this subsequent conflict.

Second, the ICRC’s suggestion that IHL governs all detentions and prosecutions in territories controlled by armed groups is hard to reconcile with the terms (and travaux) of Arts. 5 and 6 APII, which apply only to “persons deprived of their liberty for reasons related to the armed conflict” and to “the prosecution and punishment of criminal offences related to the armed conflict”.

Third, it is worth considering what this interpretation means for the principle of equality of belligerents. Clearly, in State-controlled territory, not all interactions between the State and its citizens are governed by IHL. Therefore, the ICRC’s interpretation would mean that, when parties to the conflict are confronted with the same issue (e.g. dealing with common criminals or delivering health care to victims of traffic accidents), only the non-state party would be bound by IHL rules.  

Fourth, the ICRC’s view is based on the famous nexus definition adopted by the ICTY in the Kunarac case (para. 58), which sets an exceedingly low threshold of nexus (see e.g. here, p.  587 and van der Wilt, p. 1125). As I argue in my dissertation, this broad definition is popular amongst courts because it gives them a margin of appreciation regarding which crimes fall within their jurisdiction. However, the Kunarac test also contradicts some well-established aspects of the nexus jurisprudence. In particular, it leads to including purely opportunistic crimes in the realm of war crimes, an outcome widely rejected by courts (e.g. Rutaganda, para. 569) and scholars (e.g. Mettraux, p. 41 or Bothe, p. 388) (including, paradoxically, by those who formally embrace Kunarac, such as the ICTR). In sum, the ‘status’ of the Kunarac definition as the reference nexus definition is questionable.

Alternative views

Contrary to the ICRC, several prominent scholars consider that IHL does not automatically apply to the governance activities of an armed group. In this respect, Katharine Fortin has offered the most elaborated arguments to show that, in rebel territories, life events that have no nexus to the armed conflict are not governed by IHL (see here pp. 172-179). As illustrated by Marco Sassòli, legal proceedings against a cattle thief would thus fall outside the scope of IHL due to a lack of nexus (p. 270). (See also Gilles Giacca, p. 241, and William Schabas, pp. 93-98).

My research supports these views, but also calls for a more precise assessment of the nexus. The reason why general statements such as “all interactions between the armed group and the population have a sufficient nexus to the conflict” raise questions is because the requisite nexus depends on the rule at stake. Contrary to what is often assumed in jurisprudence and doctrine, there is not one but several definitions of the nexus. Different rules apply on the basis of different types and degrees of nexus to the conflict. The applicability of the IHL prohibition of torture depends on a different nexus than rules on the conduct of hostilities. Let us briefly illustrate how a rule-based assessment of the nexus would work, in relation to the administration of rebel territories.

First, it should be reiterated that APII rules apply to individuals who are “affected by” the conflict. One could consider that presence in a territory controlled by an armed group is sufficient. But the first and third counter-arguments highlighted above remain valid (1. a group’s territorial control does not necessarily derive from the conflict; 3. this idea may endanger the equality of belligerents principle). Therefore, I argue that the determining factor is not the fact that an armed group controls the territory but rather a change of ruler during the conflict. Under this more neutral criterion, the population of a territory that came under the control of an armed group in the course of the conflict is indeed affected by the conflict. However, if the territory was already controlled by the group before the start of the conflict (see above scenarios), the population is not automatically affected (the same way that civilians in State-controlled territory are not automatically affected – as the travaux of APII make clear). This population would become affected by the conflict for instance if the other party – State forces – takes control of the area (or of course during the phase of active hostilities).

Second, some rules require a more specific nexus (or, under a different view, the meaning of “affected by the conflict” is adapted to the rule). The clearest examples are Arts. 5 and 6 APII whose applicability is limited to individuals detained for “reasons related to the armed conflict” and prosecuted for “criminal offences related to the armed conflict”, e.g. support to the enemy or war crimes. For rules prohibiting murder and other specific acts (common Art. 3(1), Art. 4 APII), the requisite nexus is between the regulated act and the conflict, e.g. they apply to all conflict-related murders. This means notably that even individuals who are not yet “affected by” the conflict by virtue of their presence in a specific territory (see previous paragraph) are protected under IHL from murder and other prohibited acts that are connected to the conflict. I suggest that the threshold for this nexus (between the act and the conflict) arguably varies depending on the protagonists (act committed by a belligerent / by a civilian / intra-party violence) but it is, in any case, a low threshold. For instance, the fact that the act serves the armed group’s military goals (see discussion here, p. 179) is not, in my view, a condition to satisfy the nexus test.  

These reflections are only meant to stimulate debate on the scope of applicability of IHL in rebel-controlled territories. In this debate, the ICRC’s Challenges Report is an important contribution and I would like to thank the organizers for the opportunity to engage with it.