“Rebel Courts” Book Symposium – The Paradoxical Recognition of Rebel Rule

About the author(s):

Megan Stewart is an Assistant Professor at American University’s School of International Service. Her research investigates why political actors attempt to transform social orders, explains variation in how political actors approach social transformation, and identifies the enduring consequences of these transformative endeavors. Her book, Governing for Revolution, was with Cambridge University Press in 2021. Her other work has been published in International Organization, Journal of Politics, Comparative Political Studies, Journal of Conflict Resolution, Research and Politics, and Conflict Management and Peace Science.

Are the courts administered by rebel groups, the people who participate in them, and the decisions made in them, recognizable by other legal venues, such as states or international courts, whose legitimacy is rarely questioned? René Provost takes up these questions in the fourth part of his book, Rebel Courts: The Administration of Justice by Armed Insurgents. Provost first reviews three examples of rebel legal systems: the Kurdistan Workers’ Party (PKK) and its legislative arm, the People’s Congress of Kurdistan the Democratic Union Party (PYD), and the Kurdistan Regional Government (KRG). In all cases, these organizations “have been involved in the administration of justice” (356). The author then uses these cases to explore the implications of how the administration of justice by rebel groups could be recognized in four domains: by international tribunals and courts, by third-party states, by the state in which or against which the rebel group is fighting, and by other rebel groups. 

In terms of international recognition of rebel administration by an international tribunal such as the International Criminal Court (ICC), Provost finds that the ICC has not directly ruled on the complementarity of rebel administration (388). Nevertheless, he suggests that the ICC might need to rule on such an issue (388) and that the presence of certain conditions “encourage some degree of international deference towards insurgent justice” (409). Likewise, Provost demonstrates that third-party states recognize the rebel administration of justice in places like Syria or the Western Sahara. In fact, such recognition is occasionally “demanded by applicable norms of international human rights and humanitarian law” (433). In addition to third-party states, the states that rebel groups are fighting recognize rebel-administered justice, though typically after war. The recognition by a national-territorial state is more likely when judicial proceedings do not violate international law and when the rebel group governs a population for an extended period (443). Finally, Provost finds that rebel organizations offer some degree of transversal recognition of the justice meted out by other rebel groups, such as a rebel group accepting documents produced by a different rebel group (448) or a consortium of rebel groups administering justice simultaneously (446). In short, Provost demonstrates that within all four potential legal domains (international tribunals, third-party states, belligerent states, and other rebel groups), some degree of recognition of the rebel administration of justice exists or could exist. Rebel recognition may also expand in the future. 

Provost’s insight that non-state groups can and do provide recognized justice in at least certain cases simultaneously challenges but (paradoxically) potentially reinforces aspects of a state-centric approach to justice. As someone who is not a legal scholar, by state-centric approaches to justice, I mean a legal approach that typically leaves unquestioned states’ ability to create legal institutions, make decisions within these institutions, and enforce these decisions relative to other organizations. A state-centric legal approach typically foregrounds internationally-recognized states’ standing in legal venues, accepts a state’s ability to make enforceable and recognized laws, and acknowledges most legal institutions and decisions that flow from the institutions created by these states. Indeed, the administration and delivery of justice are often considered essential components of national sovereignty.

Rebel groups are formed in opposition to an existing state. In many cases, rebels contest the sovereignty of this state by either seeking to control the government of that state, or by creating a new state. If a component of sovereign authority is the administration of justice, then what is at stake in recognizing rebel courts and their decisions is some degree of recognition of rebel sovereignty. Because rebels contest a sovereign state, the limited recognition of rebel sovereignty essentially comes at the expense of the sovereignty of the state they challenge. 

What Rebel Courts demonstrates is that a global legal system created and dominated by states may have provided a chisel to chip away chunks of state sovereignty while bolstering rebels’ own. States made the International Criminal Court, intentionally ceding some degree of sovereignty. However, the degree of sovereignty ceded might be more extensive than anticipated with the potential operation of complementarity to rebel groups’ courts. The operation of complementarity in the International Criminal Court implicitly recognizes effective justice-providing bodies outside the sovereign state’s formal legal institutions. Likewise, if the administration of justice is an aspect of sovereignty, that a third-party state recognizes the legal actions of a rebel group is an implicit recognition of a degree of sovereignty that a rebel group has. Provost demonstrates that the contest for sovereignty between rebels and states not only occurs on the battlefield but in the courtroom, with state-created agreements and institutions serving as some of the tools that inflict losses on the states themselves. 

Although aspects of a state-centric legal system may provide inroads for rebel groups to disrupt state-centrism, paradoxically, these incentives for recognition may encourage the replication of aspects of the state-centered justice processes by rebel groups. According to Provost, guidelines for determining if complementarity will operate are predicated upon “a certain vision of the administration of justice that corresponds to a certain notion of what is a court, and not all justice practices can be fit within that bounded notion” (406). For instance, judicial proceedings must include due process guarantees, impartiality, and independence in compliance with international law for complementarity to operate (404). Due process, impartiality, and independence, however, are ideas that institutions embody differently and to varying degrees. Provost highlights how alternative justice mechanisms can “[diverge] in very significant ways from a traditional judicial model” and still effectively deliver justice (405-6). Justice-administering institutions need not resemble a Western-style court to be effective, but complementarity in certain venues might require a degree of institutional and procedural homogeneity. 

The implication is that rebel groups who seek recognition and complementarity should make an effort to conform to this particular vision of what a court is and entails. Rebel groups should imitate state-based court procedures and institutions. Rebel organizations are acutely aware of the governance and performances in the world around them and occasionally structure governance institutions to mimic well-known international forms and institutions. In pursuit of recognition, rebels may decide to adopt the institutions and procedures that are most visible and recognizable externally. 

The result of adopting these institutions could have two implications. First, rebels might forgo alternative justice practices even if they are effective carriers of justice, are cost-effective, and faster (405) to build judicial systems that might be more legible as courts in the eyes of the international system. This could forestall justice delivery to civilians on the ground. Second, the imitation of state-based court systems replicates processes and institutions of a state-centric legal system by rebel groups. While a state-centric system provides avenues for recognizing a degree of rebel sovereignty, these avenues may require rebels to conform to and adopt specific expected systems of justice that mirror what many states already have, even if they are less appropriate to conditions on the ground. 

Provost’s work deftly shines a light on the complex tensions between complementarity and recognition of rebel court systems. In so doing, he provides fertile ground for future research at the nexus of these ideas. As an example, rebel groups occasionally extended certain rights and privileges to some marginalized communities, such as women. Suppose the state recaptured portions of rebel-held territory in which these rights were extended but rolled back these rights and privileges. Would individuals in these rebel-held territories be able to seek legal remedies for their lost rights? Would a ruling in favor of those who lost their rights mean that rebels’ rules supersede the state’s? What are the implications for rebel and state sovereignty? Future research on the recognition of rebel court decisions may provide answers to challenging questions.  

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