Making sense of a duty for non-State armed groups to provide reparations

About the author(s):

Olivia Herman holds a PhD in international law from the KU Leuven. Her recently finished PhD research focuses on “Righting Wrongs: Non-State Armed Groups and Reparations for Victims of Armed Conflict, with a Case Study of Colombia”. She is currently a legal advisor and research editor at Mwatana for Human Rights, where she advises on accountability and redress for the conflict in Yemen.

Earlier reintegration space where former FARC-EP members have been trained in humanitarian demining as an act of reparation

Reparations by non-State armed groups: why does it matter?

Exploring whether and how non-State armed groups (NSAGs), as collective duty bearers, might contribute to reparations for their violations of international humanitarian law (IHL) might appear far-fetched to some or even controversial to others. However, recent developments show that the present-day realities of armed conflicts – which are predominantly non-international in nature – have required the international community and other actors to address these challenging questions. Telling examples can be found in the work of the UN Group of Eminent Experts on Yemen (para. 867-8), and in the implementation of the now defunct FARC-EP’s obligation to provide reparations to the victims of the Colombian armed conflict as part of the 2016 Final Peace Agreement (at 186). More fundamentally, requiring NSAGs to repair the harms caused by their wrongful conduct fulfils an important justice and accountability function, which is reinforced by the significance of this measure in the fight against impunity.

Yet, it comes as no surprise that making sense of reparations by NSAGs is not an easy task. In my article Beyond the State of Play: Establishing a Duty of Non-State Armed Groups to Provide Reparations, recently published by the International Review of the Red Cross, I attempt to offer some answers from the viewpoint of IHL. The research for this article is based on my recently completed PhD Dissertation, which addresses these questions from a broader international legal perspective, including human rights law and international criminal law, and includes an in-depth analysis of transitional justice processes in Colombia.

The present blog post discusses the main features of a multi-faceted proposal on how a possible duty of NSAGs to provide reparations for violations of IHL could be operationalised. This proposal has been presented in greater detail in my aforementioned recent article.

State of play

The responsibility of a NSAG, as an entity in itself, continues to be a grey area in IHL which is in need of clarification (ICRC para. 931). This observation is particularly true for the question of reparations as one of the possible legal consequences arising from such international responsibility. International lawyers might find these observations puzzling in light of NSAGs’ well-established primary obligations under IHL: Isn’t it “a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation” ([1928] PCIJ Rep. Ser. A No. 17 [29])? Why should this fundamental principle not consistently extend to NSAGs parties to non-international armed conflicts (NIACs) in contrast to States as their warring counterparts?

Despite these concerns, I determine that the possible duty of NSAGs to provide reparations currently presents itself as being predominantly a matter of lex ferenda. At the same time, the issue finds itself at an incipient stage in IHL. Indeed, I have identified some legal precedent and recognition that these entities should provide reparations for their wrongful conduct, regardless of the present lack of an established secondary norm and forum to that end (ILC at 139; Íñigo Álvarez at 450; for further details see my article at 5-10).

Operationalising a duty of non-State armed groups to provide reparations: setting the scene

In moving beyond this state of play, I developed a forward-looking proposal on how a duty of NSAGs to provide reparations could be operationalised as part of a future responsibility regime for such entities. The proposal basically sets out how a duty that is only in its initial stages of development could be conceptualised and put into practice.

As an initial point of departure, I use the law of State responsibility – as “the paradigm form of responsibility on the international plane” (Crawford & Olleson at 444) – to frame a possible duty to repair by exploring whether and to what extent the rules and principles on reparations within this law can be transposed by way of analogy to NSAGs. The use of analogical legal reasoning should not be understood as a process of mechanically copying and pasting these standards. Instead, I identify two main areas of concern, which arise from the particularities presented by NSAGs, and need to be addressed in such an exercise:

First, I assert that there is a clear need to take account of the disparities that exist between NSAGs and States, and amongst NSAGs themselves, in respect of their organisational capacities to deliver reparations. Such capacity necessarily ties in with the level of organisation and resources of a particular group, which are usually not equivalent to that of States. This concern follows from the observation that NSAGs are heterogeneous in nature, with significant differences in organisational complexity, control over territory and wealth, amongst other features (Mack at 11). Here, the challenge is to identify abstract rules and principles on reparations that can be applied generally, and simultaneously allow for sufficient flexibility to regulate the entire spectrum of NSAGs despite these disparities. The ultimate objective is to ensure the effectiveness of a future normative framework which is devoid from any legal fiction.

Second, NSAGs might be unable or unwilling to provide reparations. This reality calls for a mechanism in the proposed legal framework that guarantees to the greatest extent possible reparations for victims, even where the respective NSAG lacks capacity or willingness.

A multi-faceted proposal on reparations by non-State armed groups

By developing the suggested responses to these concerns, I argue that the possible duty of NSAGs to provide reparations can be conceptualised in a similar manner to that of States under international law. The main difference lies in how this framework of abstract rules and principles is to be put into practice, i.e. concretely applied to NSAGs. I propose that this can be done by implementing an actor-specific approach and a cascading regime of responsibility for reparation.

Actor-specific approach

The common practice of framing a duty of reparation based on the underlying violation of the primary rule and the resulting harms is taken as the starting point in respect of NSAGs. However, with a view to injecting needed flexibility into the regulatory framework, I propose to adopt an actor-specific approach to the concrete application of a particular NSAG’s duty to provide reparations. The approach entails that a case-sensitive assessment is made of the responsible NSAG’s level of organisation and resources. Both elements are understood as important indicators of the group’s organisational capacity to deliver the required redress. This assessment aims at determining the concrete scope of the group’s duty in terms of the forms of reparation it is required to grant, and the extent to which it will need to engage in their provision. In doing so, the approach seeks to respond to disparities in the organisational capacities of NSAGs, and to ensure that the reparation obligations are feasible in practice. As such, the approach assists in accommodating the specificities of a particular case. The proposal finds notable support in the regulation of NSAGs under the primary rules of IHL, which similarly takes account of capacity and feasibility concerns (see my article at 18-19).

Let’s consider the scenario of a peace negotiation where a minimally organised NSAG with hardly any resources has been requested to provide monetary compensation and measures of satisfaction, such as a public apology or acknowledgment of collective responsibility, to repair the harms caused by a wrongful act. The actor-specific assessment might reveal that the group is unable to provide for both forms of reparations due to its limited organisational capacity. As a result, the group might be primarily required to provide the measures of satisfaction, as they are within the group’s capabilities. That being said, if resources are limited, they could still be used to contribute, even symbolically, to compensation. Thus, the engagement of a NSAG in reparations should not be understood as being all or nothing. Instead, the extent of a group’s engagement can range from fully satisfying the required reparation to contributing to, or at least facilitating, its delivery.

Cascading regime of responsibility for reparation

To the extent that the responsible NSAG is unable, or unwilling, to satisfy the required redress, the subsidiary responsibility of the territorial State is triggered as part of the proposed cascading regime of responsibility for reparation. As such, a division of responsibility between the NSAG and the State might arise. In the given example, the State partly replaces the group in its obligation to provide compensation, while the delivery of the other reparation measures, such as public apologies, cannot be substituted by a third actor. Thus, the cascading regime recognises that NSAGs should bear the primary duty to provide reparations for their own wrongful conduct under international law. At the same time, reparations should not be made dependent on such actors. Instead, the State should take an important role in ensuring to the greatest extent possible the required full reparation for victims, supplemented with possible assistance from the international community.

To conclude, the multi-faceted proposal presented in this contribution clarifies how a possible duty of NSAGs to provide reparations could be operationalised. In doing so, I put forward a pragmatic approach that places considerations for accountability and victims at its centre, while being grounded in existing international law and practice.

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