“Rebel Courts” Book Symposium – Discipline and Order

About the author(s):

Mark A Drumbl is the Class of 1975 Alumni Professor of Law and Director of the Transnational Law Institute at Washington and Lee University, Virginia, USA. He is author of Atrocity, Punishment, and International Law (CUP, 2007) and Reimagining Child Soldiers in International Law and Policy (OUP, 2012), both of which have been widely reviewed and cited. He is co-editor of the Research Handbook on Child Soldiers (with Jastine Barrett, Elgar, 2019) and Visualities and Aesthetics of Prosecuting Aged Defendants (with Caroline Fournet, Brill, 2022). Together with Barbora Holá he is currently writing a book called ‘Getting Collaborators’: Stories and Sentiments from Communist Prague (OUP, 2023), which hinges upon extensive archival work in the secret police files from the former Czechoslovakia.

Timbuktu is a 2014 Franco-Mauritanian film set in the iconic Malian city. This is a repressed Timbuktu, however, a space occupied by the National Movement for the Liberation of Azawad (NMLA). The NMLA fought the Malian government in the north of the country. This jihadist movement, linked to Al Qaeda, imposed through its Ansar Dine (a morality brigade, ‘defenders of the faith’) a strict regime tethered to certain Salafist interpretations of Shari’a. 

This film – directed by Abderrahmane Sissako – is hauntingly beautiful in composition and elegiac in tone. It tells the story of Kidane, a cattle-herder, who lives on the outskirts of town with his wife, Satima, and daughter, Toya. One of Kidane’s rambunctious cows (named GPS) is killed by a local fisherman, Amadou, when Issan, a boy-herder, kind of like a son to Kidane, cannot control GPS in the river. GPS entwines with and destroys the fisherman’s painstakingly placed nets. Kidane stews over the incident. He then decides to go ‘talk to’ Amadou. A fight ensures. Kidane secretly is carrying a gun. It goes off. The film leaves it vague whether the discharge was accidental, careless, or intentional. It doesn’t matter. The fisherman dies. And Kidane ends up before a jihadi court.  

While much of the story of ‘Timbuktu the case’ for international audiences refracts through court proceedings at the International Criminal Court, where in real-time Ahmed Al-Mahdi pleaded guilty to intentional destruction of cultural property for his razing with Ansar Dine of Sufi mausolea, ‘Timbuktu the film’ tells the story of the everyday operation of these rebel jihadi courts for ordinary offenses. A convicted couple is publicly stoned to death for adultery, for example, and a woman is lashed for singing. And Kidane? Well, he is convicted of murder. Amadou’s family refuses to forgive. Kidane is sentenced to death. Satima rushes on the back of a moto to see Kidane before the execution. A melée ensues. Both are shot to death. The story ends with Kidane’s children – the boy-herder Issan and the daughter Toya — running for their lives, like gazelles, in the desert.

The activities of rebel courts, investigators, law, and enforcement are central to the tragedy of Timbuktu. Sissako brings to light the harsh rule such courts imposed upon all aspects of lives locally lived. Shari’a courts in Timbuktu enforced all sorts of laws: criminal, property, matrimonial, private, and even edicts related to games, songs, permissible noises and deemed nuisances. One of the film’s most graceful scenes is a group of boys playing football without a ball, just imagining, because the ball had been confiscated, so the game was just foot, and it was a melodic mime, with magic passes and nimble touches.  

Sissako unspools a local fact-fiction story through image and sound; René Provost unwinds a global research story through scholarly print on pages. Provost’s Rebel Courts: The Administration of Justice by Armed Insurgents is a major book. It proceeds through four case-studies: the FARC, Islamic State and Taliban, the Tamil Tigers, and Kurdish courts. As in the film, Provost finds that rebel courts deal with a range of ‘offenses’: serious violence along with the selling of cigarettes to make some money (p. 113). Provost constellates this comparative analysis around a number of substantive themes, to which the governance role of these courts is central: rebel rule of law, the legality of rebel courts, their jurisdiction, and the external perceptions of such courts as reflected through recognition. Provost combines field-work, interviews, and a kaleidoscopic survey of all sorts of secondary academic literature. The result is an erudite and encyclopedic volume that is clever and comprehensive while original and insightful. Although Provost may slightly overstate the paucity of literature on rebel courts (see, e.gTom Ginsburg’s survey), his book hugely contributes to the conversation, in particular, in its discussion of ‘rayonnement’, namely, how these courts interact with other judicial actors. Provost’s treatment of complementarity is of particular salience in light of the ICC’s track-record of prosecuting rebel groups whose rebellions failed and the states who ‘won’ self-referred the situation to the ICC (as in Mali). 

Provost delivers a tour-de-force sprinkled with history (i.e. the Courts of the Confederate States of America) and layered upon actuality; and all the while laced with irony, notably, that rebels may – as in Syria – apply the national law of the regime they seek to dismember or overturn.  

Provost leaves us with the central claim that the rebel administration of justice can be both a social evil as well as a social good, certainly if lawlessness is constructed as a frightful alternative (which it generally is to lawyers of any ilk). And, to be sure, United Nations officials exhort rebel groups to police and monitor. Such is the case, for example, when it comes to the conscription and use of child soldiers. International officials laud judicial efforts within rebel groups to sanction commanders who illicitly recruit or enlist children. On this note, the ‘duty to punish’ serious human rights offenders would extend to both state and non-state actors. 

Provost’s book is deeply generative of new questions and research lines. It is some of these, as I see them, that I would like to continue to unwind in this commentary.

One is discipline. What does discipline look like in collective groups? How to discipline? Non-state rebel groups may crave being like states and their judicial functions may proceed accordingly. Discipline matters in this regard. For example, the Irish Republican Army went to great lengths to punish and sanction ‘touts’ – informers, collaborators, deceivers – who tattled to British Army authorities about IRA activities.  Ron Dudai and Kevin Hearty have a great discussion of this theme in this edited volume. The informer is a figure that I have been thinking about a lot lately since Barbora Holá and I are writing a book about informers in Communist Czechoslovakia. We inquire why people spoke to secret police (including to rat out resistance movements) and wonder what, if anything, should be done about it. Informers are a major source of concern to all groups that challenge the state or seek to reform it. So, I wonder, riffing off these internal control mechanisms in the case of perceived treachery and rule-breaking: are rebel groups who are ‘used to courts’ more amenable to the subsequent intervention of ‘outside courts’ and the role of ‘law’ in transitional justice? Do rebel groups steeped in ‘court cultures’ have elites more prone to permit ‘judicialization’ as part of peace agreements? If so, then, powerful international actors who believe that the application of law is indispensable to ‘progress’ might encourage extensive judicial enforcement (perhaps even regardless of the content of that law) by rebel courts during their rebellions and occupations. The existence, after all, of a ‘culture of courts’ might be more important than the exact content of whatever law those ‘courts’ enforce. Problematic courts might be easier to ‘talk to’ and negotiate with after the fact than no courts or outlawism.

And what about entities that look less like states? Or are earlier along in the genealogy of their ‘state-like-ness’? Or who use less violence? I wondered about disciplinary enforcement in clandestine resistance groups; dissent within political or activist movements; non-compliance in organizations whose operations are virtual rather than territorial.  And, in this vein, Provost’s work, focusing on the more state-like of non-state entities, can open doors to think about the role of law and courts — the place of process — in maintaining discipline amid entities that are less ‘state-like’, so to speak, and illuminate the role of discipline in cabining betrayal (i.e. informing) or sadism (i.e. excessive violence) or insurrection (i.e. challenging authority) even within groups built on authority-challenges. Pushing further, what about entities that might not fight politically or have formal statist aspirations? I am thinking of ordering within criminal syndicates and gangs, for example, and trafficking rings; sanctions within corporate organizations; mechanisms such as institutional ‘Honor Codes’, such as at my university, which are collectively administered by peers and can result in a single severe sanction following confidential but public proceedings (i.e. expulsion, immediate dismissal). Relatedly: One of my very favorite articles I distribute in my contract law class is a 1992 piece by Lisa Bernstein on the diamond trade, and the private arbitral sanctions deployed internally in cases of improper commercial behavior among merchants, which can include hanging the picture of a derelict trader ‘in the clubroom of every bourse in the world with a notice that he failed to pay his debt … [which] can put him out of business almost instantaneously’.

Provost also got me thinking of the fragmented nature of ‘state’ courts. In the US, for instance, courts-martial proceed independently from the federal courts; moreover, military commissions can operate in the shadowy interspace between the two. In Nazi Germany, the macabre reality arose that SS Courts prosecuted and severely punished leaders of forced labor camps (e.g Karl-Otto Koch, Amon Göth) whose violences transgressed the violences mandated by violently eliminationist law – often in cases where the violence was deployed for private gain rather than for the enrichment of the Reich. All the while, as the Judges trial (Altstötter et al) at the Subsequent Proceedings reveals, a public judicial system in Nazi Germany crushed dissent, enforced Nazi ‘racial purity’, and tormented citizens. How do we think about parallel judging in this context? About institutionalism?  

Provost connects rebel courts to themes such as legitimation and governance. I however see in his book a connection – professional in nature – ideationally to ‘us’ as members of, pace Oscar Schachter, this ‘invisible [though increasingly noisy] college’ of international lawyers. Provost’s book recognizes that international law may be applied in many ways on many days by ‘courts’ that international lawyers do not think much about. In part, this is because ‘we’ don’t much want to think about rebel courts. Why? Because they are often imperfect, fraught, crummy, undignified, amateurish, corrupt, harsh, crude. They fail to conform to the refined (and reified) legalist sensibilities that purportedly blossom in The Hague and the donor-driven neo-liberalism that underpins ‘appropriate’ transitional justice. They are outlaw-law. Yet this awkward embarrassment leads to neglect. It relegates to a vast hinterland some of the many actors who, while lacking in gentleness, manufacture and enforce rules, including possibly ‘our’ law and ‘our’ civilizer of nations.  Provost’s book is a much-needed, and skillfully delivered, epistemological corrective to the where and by whom law – including even atrocity law – is actually made and implemented, for better or for worse. In this sense, and coming full circle, Provost adds depth and universality to gripping stories of the local such as those poignantly documented in Timbuktu.

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