About the author(s):
Emanuela-Chiara Gillard is a Senior Research Fellow at the Oxford Institute for Ethics, Law and Armed Conflict and an Associate Fellow in Chatham House’s International Law Programme. From 2007 to 2012 she was Chief of the Protection of Civilians Section in the Policy Development and Studies Branch of the United Nations Office for Coordination of Humanitarian Affairs. For seven years prior to joining OCHA, Emanuela was a thematic legal adviser at the International Committee of the Red Cross. Before joining the ICRC in 2000, Emanuela was a legal adviser at the United Nations Compensation Commission. From 1995 to 1997 she was a research fellow at the Lauterpacht Research Centre for International Law at the University of Cambridge. Emanuela holds a B.A. in Law and an LL.M. from the University of Cambridge. She is a Solicitor of the Supreme Court of England and Wales.
The present blog post is based on comments made at the launch of Laura Inigo Alvarez’s book, Towards a Regime of Responsibility of Armed Groups in International Law, organized by ALMA.
Dr Alvarez’s book is a timely and valuable contribution to the analytical framework for considering the responsibility of organised armed groups (OAGs). All too frequently in recent years discussions of accountability have focused on individual criminal responsibility, to the exclusion of the ‘civil responsibility’ of belligerents – states and OAGs. This has been the case both in academic discussions, and in the approach of the Security Council, and even more markedly, that of the numerous fact-finding bodies established by the UN Human Rights Council.
This is a regrettably narrow focus. Narrow in terms of possible ways of promoting compliance with international humanitarian law (IHL): accountability for violations is an important but only partial approach for doing so, but there is a tendency to focus on this ex post facto dimension, and overlook initiatives to promote compliance in the first place. And narrow because, even within the realm of accountability, there is almost an exclusive focus on individual criminal responsibility.
This unduly limits the scope of endeavours to promote compliance with IHL. The obligations under IHL of parties to an armed conflict are significantly broader than those whose violations lead to individual criminal responsibility. Even with regard to those violations that are war crimes, and even if there is a court with jurisdiction, it may be impossible to identify the perpetrator of the violations, who in any event is extremely unlikely to provide reparations to all victims. Moreover, criminal proceedings are unlikely to lead to a change of the practices of the relevant party.
Against this background, a rigorous analysis of the framework for responsibility of OAGs, like that conducted by Dr Alvarez, is most welcome. With this as a starting point, the present blog addresses three issues.
A ‘gap’ or a need for clarification?
My first point is that we need to be clear as to what is currently missing in the analysis and practice relating to the responsibility of OAGs.
While thinking and practice is currently evolving on the question of whether OAGs are bound by international human rights law, the position with regard to IHL is settled. Since at least 1949, with the adoption of common Article 3 to the Geneva Conventions, it is uncontroversial that OAGs are bound by IHL. Both the existence of this obligation and, indeed, a significant body of primary rules that OAGs must comply with either as a matter of treaty or customary law is now well-established.
It is the rules regulating the secondary responsibility of OAG that have received far less attention. Care must be taken not to drawn unwarranted conclusions as to the reason for this. The International Law Commission (ILC) did not address OAGs in its work on the responsibility of states or international organisations because, apart from a few elements in the articles in the responsibility of states, OAG simply fell outside the mandate given to the ILC on these occasions. The fact the ILC did not consider the responsibility of OAGs should not be seen as an indication that there are no rules regulating their responsibility, or that intrinsically they cannot exist.
Similarly, the fact the various commissions of inquiry and fact-finding missions considered by Dr Alvarez, have tended to focus on the responsibility of individual members of OAGs rather than the groups itself, is also due to the mandates given to such bodies, which for the most part have required identification of responsible individuals. Cases before international and domestic courts are rare because of the challenges of establishing jurisdiction.
This limited analysis and practice must not be seen as an indication that there is no responsibility of OAGs if they violate rules of IHL binding on them. What is missing is clarity as to when such responsibility arises.
Membership as a basis for attribution
My second point relates to attribution – a key question in determining when the responsibility of OAGs can arise. Dr Alvarez’s book is an extremely useful analysis of the rules of attribution for states according to the ILC, and of how they could be transposed by analogy to OAGs, highlighting the theoretical and practical challenges of doing so. Attribution is a relatively unexplored question when it comes to OAGs – the position for states has recently been analysed in detail – and is the topic of the next blog in the present series.
I nonetheless want to comment on one ground for attribution discussed in the book: membership of the group. This is a key basis for attribution, but one in respect of which the rules applicable to states are of limited assistance.
Membership of an OAG is pertinent for various purposes, including to determine the existence of a group, and consequently the existence of an armed conflict and the application of IHL; for the purpose of targeting under the rules of IHL regulating conduct of hostilities – and it is in this regard that the ICRC Interpretive Guidance on Direct Participation in Hostilities [p32] draws a distinction between the political and military wings of OAGs; and to establish a ‘nexus’ between the conduct of an individual and an armed conflict, inter alia to determine whether particular conduct could amount to a war crime. Membership of, ‘association’ and ‘affiliation’ with OAGs are also criteria used for the purpose of counter-terrorism measures.
In all these cases, the question of whether a particular individual is a member of an OAG is asked for different reasons with very different consequences. Relevant criteria for one purpose are not necessarily relevant or indeed appropriate for another.
Dr Alvarez’s suggestion to develop indicators for determining membership of an OAG for the purposes of establishing attribution is an excellent idea – but extreme care must be exercised when elaborating them to avoid drawing inappropriate analogies from other areas of the law for which membership of an OAG is also relevant.
Reparations
My third and final point relates to reparations. This is an area where even with regard to violations of IHL committed by states practice leaves a lot to be desired. Although both the responsibility of states to make reparations and the right of victims to a remedy and reparations are generally accepted, currently there is a disconnect between the two, and instances of reparations actually being made to individual victims of violations of IHL remain regrettably extremely rare.
There are many reasons for this, including the fact sovereign immunity can thwart proceedings against states before domestic courts. This is a hurdle that would not arise if proceedings were brought against OAGs – and it should not be assumed that they inevitably lack funds. As in the case of states, the challenge lies on securing access to such funds.
Creative approaches are currently being developed to trace the assets of persons responsible for torture that have been frozen under sanctions and to use them to provide reparations. Some OAGs have been sanctioned – principally under counter-terrorism measures – and their funds frozen. Similar approaches could also be explored for securing funds to provide to reparations to victims of IHL violations committed by such groups.
Always on the topic of reparations, attention has tended to focus on compensation, but this is not the only form that should be considered. Providing moral reparations can be just as important to survivors and as a step towards reconciliation.
Moreover, guarantees of non-repetition, which require engagement with OAGs to promote a change of practice to avoid future violations is both a form of reparation, and a fundamental element in encouraging compliance with IHL. An engagement that is being jeopardised in many contexts by counter-terrorism measures.
An opportunity
By way of conclusion it is important to note, once again, that there is no single best solution for enhancing compliance with IHL. All possible approaches must be considered, in a complementary and creative manner. OAGs are a key actor in contemporary conflicts, and clarifying the situations in which they are responsible for violations of IHL will play an important role in promoting compliance with the law. As Dr Alvarez notes, the ILC is unlikely to embark on this exercise. This creates an opportunity for other experts to take on this challenge.