Book symposium “Rebel Courts: The Administration of Justice by Armed Groups”: Introduction

About the author(s):

René Provost Ad.E. FRSC is Professor of Law at McGill University, where he was the founding Director of the Centre for Human Rights and Legal Pluralism. His books include: Rebel Courts – the Administration of Justice by Armed Insurgents (Oxford University Press, 2021); International Human Rights and Humanitarian Law (Cambridge University Press, 2002); State Responsibility in International Law (Ashgate/Dartmouth, 2002); Mapping the Boundaries of Belonging: Law Between Religious Revival and Post-Multiculturalism (Oxford university Press, 2014); Culture in the Domains of Law (Cambridge University Press, 2017); Confronting Genocide (Springer Verlag, 2011); and Dialogues on Human Rights and Legal Pluralism (Springer Verlag, 2013).

A facet of the current war in Ukraine that has attracted less attention, understandably so in the circumstances, concerns transitional justice in Donetsk and Luhansk if Ukraine is able to fully repel Russian forces and regain control of all its national territory. Both Donetsk and Luhansk are self-proclaimed ‘people’s republics’ that have had de facto autonomy since 2014, when non-state armed groups engaged in a non-international armed conflict with Ukraine managed to gain territorial control over these two regions with support from Russia. Donetsk and Luhansk each adopted a constitution in 2014 which acts as the foundation of the legal orders in the regions. The Ukrainian government ordered all state courts to suspend their operations in areas under rebel control, and these were progressively replaced by rebel courts of the autonomous Donetsk and Luhansk authorities, including appeal and supreme courts. Information on the administration of justice in these territories has proven extremely challenging to obtain, but reports by the UN and international NGOs paint a glum picture of justice before the courts of Donetsk and Luhansk. There are credible accounts of individuals accused of collusion with Ukraine being arbitrarily detained, subjected to torture, coerced to sign confessions, and generally being denied the fundamental guarantees of due process. That may well be so, but the treatment of enemy spies and collaborators during war corresponds to a point of extreme tension between national security and the rule of law, often the lowest point in the administration of justice by state and non-state actors alike; as such, these cases are not necessarily representation of the vast majority of cases before rebel courts, dealing with petty theft, financial fraud, child custody disputes, claims in civil liability for wrongful or negligent conduct, property disputes, adoptions, and so on. Even in war, the stuff of daily life largely keeps happening, and in territory under the control of a non-state armed group, the courts of the rebels likely are the only ones available to settle legal issues. What legal weight should attach to all these decisions, once state sovereignty over an area has been restored? Can Ukraine, on the basis of the illegitimacy of rebel governance in Donetsk and Luhansk under national law, simply erase all judicial acts in one fell swoop? In Rebel Courts, I argue that international humanitarian law and international human rights mandate that, if non-state armed groups in a conflict zone regularly establish courts, then some measure of recognition of their decisions may be due in certain circumstances.

FARC photo from Nadège Mazars.

Irregular armed groups are typically represented as wholly permeated by illegality, from the very resort to armed force to the involuntary recruitment of fighters to the means and methods of warfare used; they are taken to be truly outlaws, and often encompassed under a very broad understanding of “terrorism”. International law broadly has refrained from declaring as illegal the use of force by or against the state in a national setting, limiting itself to extending to insurgents the same criminal sanctions for breaches of the laws of war as are applicable to governmental armed forces, and posing few limitations on a state’s ability to criminalise insurgency under domestic law. The administration of justice by non-state armed groups in zones of conflict is a reality that is underexamined even though it produces significant factual and legal effects that can be analysed under public international law. The rebel administration of justice can be situated within the broader field of rebel governance, corresponding to an emerging field of enquiry which provides some framing concepts for the analysis offered in Rebel Courts. In another direction, the rebel administration of justice raises pointed and challenging questions with respect to the concept of law. Legal pluralism offers a vision of legal normativity that encompasses a wide range of actors and practices, and as such stands as an especially promising perspective from which to consider insurgent justice. Any attempt to meaningfully consider the legality of a practice should be grounded in an understanding of the practice in question that is as precise as possible. For the rebel administration of justice, this implies an appraisal of the details of the structure and operation of insurgent courts. In that spirit, the book offers a legal analysis of rebel justice that relies on a series of case studies prepared for that purpose. Unsurprisingly, the preparation of case studies of the practice of armed groups in situations of armed conflict poses several methodological challenges, a key one being the enormous difficulty in obtaining accurate and precise factual information on the rebel administration of justice. 

There are at least four related but distinct bundles of questions that arise from a consideration of the practice of insurgent courts in the context of an armed conflict, each discussed in a separate chapter in Rebel Courts. First, what does the claim by armed insurgents that they can administer justice tell us about our conception of the rule of law and, more broadly, the concept of law? Second, are there legal standards in international law that explicitly or implicitly legitimize or prohibit the establishment of courts by an armed non-state actor? Third, if such courts could be lawfully created, what are the conditions required under international law for them to exercise their jurisdiction validly, including elements of a fair trial? And fourth, if an insurgent court is lawfully created and has exercised its jurisdiction in compliance with international law, what recognition is to be accorded to its judgments? 

A first chapter considers the compatibility of the rebel administration of justice with the concept of the rule of law, using the FARC in Colombia as a case-study. The Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo(FARC) was the largest non-state armed group during five decades of civil war in that country. At its peak, it wielded dominant territorial authority in more than half of Colombian municipalities. While it generally did not establish standing institutions to administer justice, it imposed legal norms, coopted existing community justice mechanisms, and established informal and hybrid practices to settle legal disputes in the civil and criminal law fields. FARC justice practices are used to explore the concept of the rule of law, an essentially contested legal concept that cannot be exclusively attached to the modern state. The rule of law is shown to be a concept with a flexible content, modulated by circumstances such as the onset of armed conflict. Elements of a rebel rule of law adapted to the nature of non-state armed groups and context of armed conflict are articulated based on applicable international humanitarian and human rights law. Finally, the principle of state sovereignty is analysed to show that it does not impart exclusive jurisdiction to the state over the administration of justice, but instead can accommodate justice practices by a diversity of actors, including non-state armed groups in conflict zones.

A second chapter assesses the legality of rebel courts pursuant to applicable rules of public international law, with the case studies of the rebel administration of justice by the Islamic State and the Taliban. The Islamic State at one point controlled a territory in Syria and Iraq as large as the United Kingdom. It had a highly developed institutional structure that was quite bureaucratic in nature, including a multi-tier court system that imposed harsh but undeniably effective justice. The Islamic State forcefully rejected notions sur as the rule of law and judicial independence and impartiality. The Taliban prior to its full take-over of Afghanistan in August 2021 had a hierarchical governance structure, in which courts were somewhat separate from other sections of the group. Taliban judges are trained Islamic scholars that constantly rotated from province to province, and there were provincial appeal court and central apex courts. The very concept of a ‘court’ used in international law norms applicable to armed conflicts implies some basic attributes that will not be met by any and all adjudicative body. That said, the concept of a ‘regularly constituted court’ in international humanitarian law and of a ‘court established by law’ in human rights law correspond to basic criteria that are not impossible to meet for an armed group. Likewise, the institutional requirement of independence and impartiality that define what is a court, once adapted to the reality of a non-state armed groups operating in a conflict zone, can indeed be met by some armed insurgents.

A third chapter examines the implication of a broad requirement of due process for rebel courts, taking as a case study the judicial system put into place by the Liberation Tigers of Tamil Eelam (LTTE) in Sri Lanka. The LTTE launched an armed insurgency against the government of Sri Lanka in the early 1980s, eventually controlling nearly forty percent of national territory. The LTTE developed an independent civil administration which included a state-like court structure with seventeen distinct courts at trial, appeal, and supreme court levels. The group also enacted comprehensive civil and criminal codes, as well as other important pieces of legislation. The chapter takes this exceptionally sophisticated insurgent court system to interrogate the concept of rebel jurisdiction, exploring the foundations in public international law of the extent and limits of territorial, subject-matter, and personal jurisdictions of rebel law and courts. The analysis then turn to the thorny issue of due process requirements that must be met under international humanitarian and human rights law to consider as fair a trial before a rebel court. The precise content of the requirement of a fair trial under international law does vary in situations of emergency like international and non-international armed conflicts. In addition, legal standards must be adjusted to reflect the nature of non-state courts and the particular contextual challenges faced by rebel governance in conflict zones. On that basis, each applicable due process guarantee is analysed to determine the precise requirements it imposes on rebel justice.

Finally, a fourth chapter analyses the possible legal recognition of insurgent justice by other actors, using the judicial practice of three independent Kurdish non-state armed groups in the Middle East as a case-study. The Partiya Karkerên Kurdistan (PKK, Kurdistan Workers’ Party) has been engaged in a bitter armed struggle with Turkey since 1984, with rear bases in northern Iraq and Syria. The Partiya Yekîtiya Demokrat (PYD, Democratic Union Party) is a Kurdish insurgent group that joined the anti-Assad uprising of 2011 and now controls parts of the north-east part of Syria, in a precarious coexistence with the Syrian government. Finally, the Kurdish Regional Government (KRG) has operated independently since 1991 and remain in a military standoff with the central Iraqi government. All three Kurdish groups operate courts at trial and appeal levels, for civil and criminal matters. The Chapter considers the possible application of the principle of complementarity under the Rome Statute in relation to a prosecution before the courts of a non-state armed groups. Likewise, the right or duty of third states under international law to give recognition to the operation of insurgent courts is examined. More radically perhaps, there is a possibility that even the territorial state might in some cases give legal effect to rebel court decisions. Finally, the Kurdish courts offer examples in which one non-state armed group is confronted with the need to determine the validity of the decisions of courts of other armed insurgents.

The rebel administration of justice can be a social good provided by non-state armed groups in situations of armed conflict, in a manner that is not dependent on the legitimacy of their cause. International law provides parameters that can guide this practice, calling for more detailed studies of rebel justice that will allow precise legal analyses. State and non-state law interact in complex patterns in zones of conflict, opening new avenues for an understanding of legal normativity inspired by legal pluralism. Finally, decisions of rebel courts do not lose all significance once war is over. Transitional justice must recognise that the rebel administration of justice is a practice that has factual and legal consequences that keep producing effects long after hostilities have ceased.

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