“Rebel Courts” Book Symposium – The Prosecution of Conflict-related Offences by Courts of Armed Groups

About the author(s):

Alessandra Spadaro is an Assistant Professor of Public International Law at Utrecht University. She obtained her PhD in international law from the Graduate Institute of International and Development Studies in 2021, with a thesis on detention by armed groups. She specializes in and has published on international humanitarian law, international human rights law, international criminal law, and their intersection.

René Provost’s latest book, Rebel Courts, addresses the numerous legal issues surrounding courts established by non-state armed groups in armed conflict. Combining a legal pluralistic methodology with field work and case studies, Provost’s analysis of rebel courts ranges from the legality of their establishment, to the applicable law and due process guarantees, to the recognition of rebel judgments by international and domestic courts. The book is lengthy, rich, and fascinating. 

In this post, I will focus on the prosecution of conflict-related offenses by rebel courts. With this term, I refer to acts (other than international crimes and offenses committed by the armed group’s own members) which armed groups consider prejudicial to them in relation to the armed conflict and thus worthy of punishment. I decided to take my participation in this symposium as an opportunity to highlight some of the arguments put forward by Provost concerning these offenses, to point out areas for clarification, and to present further reflections. 

Preliminary remarks on applicable law and ‘rebel jurisdiction’

Before discussing which conflict-related offenses can be adjudicated by rebel courts, two remarks are necessary to give some context to the reader. 

First, Provost finds that ‘There is no norm of international law that denies all law-making authority to non-state armed groups, although it does signal some limits related to subject-matter’. (p. 257) In relation to the limits posed by international law, he mentions that, for example, the criminalization of apostasy by the Islamic State would be contrary to the protection of freedom of religion and conscience under both international humanitarian law and international human rights law (p. 264). In rare cases, rebel courts apply the criminal laws of the state against which the armed group is fighting. Indeed, some armed groups in Syria have been applying the Syrian Penal Code (p. 260). However, armed groups should not apply domestic norms that violate international law, and should rather replace them (p. 264; similarly Fortin, p. 166). Often, armed groups rely on external legal standards (Provost mentions the Sharia and the Unified Arab Code as examples) or they adopt their own criminal rules (p. 261). Notably, Provost does not find rebel criminal law per se at odds with the principle of legality (pp. 342-346) (for a different take see Klamberg, pp. 252-253). For the prosecution of conflict-related offenses, armed groups would apply their own law, rather than the law of the state (under which they are the criminals).

Second, perhaps to the dismay of some more conservative international lawyers, Provost talks of rebel courts having ‘jurisdiction’. In his words: ‘The notion that rebel authority may be recognized under international law in certain circumstances, and the conclusion that armed groups can make laws, coalesce in the concept of rebel jurisdiction.’ (p. 250) He then goes on to speak of the territorial (or ratione loci), subject-matter (or ratione materiae), and personal (or ratione personae) jurisdiction of armed groups. For consistency purposes, I will use the same terminology in this post. 

Conflict-related offenses: ‘treason’ and direct participation in hostilities 

In Chapter 3, Provost analyzes two conflict-specific offenses: acts that endanger the armed group’s security (for which he uses the label of ‘treason’) and acts concerning the participation in hostilities against the group. According to Provost, the criminalization of these conducts is not an obvious violation of either international human rights or humanitarian law (p. 265). 

In relation to the former type of offenses, Provost finds that international law (as opposed to domestic law) does not prevent armed groups from prohibiting acts that pose a security threat to them – such as collaboration and espionage – in territory under their control (p. 268). I agree with this assessment, and I similarly argued elsewhere that armed groups can adopt laws on the basis of which they can lawfully subject individuals to security detention for reasons related to the armed conflict (somewhat differently see Casalin, pp. 756-757). 

With respect to the criminalization of the participation in hostilities against the group, Provost instead argues that this falls beyond the subject-matter jurisdiction of armed groups (p. 271). Louise Doswald-Beck expressed doubts as to whether courts created by armed groups to try enemy personnel could ever be independent and impartial (here, p. 491; see also Klamberg, p. 253), without however elaborating on the legality of the charged offenses. Provost, who rejects a formal understanding of the concept of equality of belligerents (pp. 144-149), argues that the government’s jurisdiction over the entirety of the state’s territory allows it to proscribe rebellion within its borders (and thus direct participation in hostilities in the ranks of an armed group). Conversely, he concludes that the criminalization of direct participation in hostilities on the side of the enemy falls beyond the subject-matter jurisdiction of armed groups. He explains that in relation to this offense, rebel jurisdiction ‘is limited by the territorial reach of the armed group’s effective authority; by definition, a soldier engaged in hostilities against insurgents will not be doing [so] from a position of subservience to the authority of the armed group’ (pp. 270-271). I find this argument unconvincing for three main reasons. 

First, if the issue with the armed group’s criminalization of direct participation in hostilities is the territorial reach of the group’s jurisdiction, it is not clear why this prohibition is said to fall beyond the group’s ratione materiae jurisdiction, rather than ratione loci. When dealing with this latter aspect a few pages earlier, Provost explained that ‘While rebel jurisdiction mostly remains limited to the territory under its authority, there are examples of extraterritorial extensions, for both normative and enforcement jurisdiction’ (p. 255) and even acknowledged that armed groups may be able to exercise jurisdiction beyond the boundaries of the territory under their control (p. 256). The territorial reach of an armed group’s prescriptive and enforcement jurisdiction can and should be kept logically separate from the group’s subject-matter jurisdiction. Indeed, the difference Provost makes between treason-like offenses and direct participation in hostilities does not seem qualitative (given that direct participation in hostilities also poses a security threat to the armed group), but rather a matter of where the acts are committed. 

Second, and related to this latter point, it is not necessarily true, as a matter of fact, that a soldier engaged in hostilities against the armed group will never do so from ‘a position of subservience to the authority of the armed group’ (p. 271) (which I take to mean in an area under the armed group’s control). Provost himself explains that territorial control in non-international armed conflicts is rarely monolithic: the state and the armed group often have overlapping and shared control of the same areas (pp. 79-80). Additionally, for an armed group to be able to capture a government soldier whom they might want to try for directly participating in hostilities, the soldier would have to be in an area where capture is possible, and therefore somewhat within the territorial jurisdiction of the armed group. 

Third, Article 6(5) of Additional Protocol II encourages ‘the authorities in power at the end of the hostilities’ to grant amnesties to those who participated in hostilities. If we accept that the authorities in power to whom this encouragement is directed can include victorious armed groups, as Provost acknowledges (p. 270; see also UK LOAC Manual, p. 405, para. 15.42), then logically this provision recognizes that the armed groups would be able to prosecute members of the defeated opposing party in the first place. Otherwise, there would be no point in encouraging them to grant amnesties instead of conducting prosecutions. This is not a matter of equality of belligerents, but rather of the interpretation of this provision. 

For these reasons, I believe that armed groups can prosecute enemy fighters (whether they are government soldiers or members of opposing armed groups) for direct participation in hostilities. I would nevertheless be curious to read Provost’s rebuttal to the issues I raised. I would also like to offer an alternative example of a conflict-related offense that I do not think armed groups are allowed to prosecute: the refusal to serve in the armed group’s ranks. To my mind, punishment related to forced recruitment is a particular category of conflict-related offenses that raises different challenges than the ones presented by the two abovementioned offenses dealt with by Provost. The following section offers some reflections on this offense. 

Refusal of forced conscription 

As far as states are concerned, conscription is an exception to the prohibition of forced labour (Article 8(3)(c)(ii) International Covenant on Civil and Political Rights, Article 6(3)(b) American Convention on Human Rights, Article 4(3)(b) European Convention on Human Rights, Article 2(2)(a) Convention concerning Forced or Compulsory Labour No. 29). The prerogative of states to conscript individuals is tempered by the conscripted individuals’ right of conscientious objection, which derives from their freedom of thought, conscience, and religion or belief. 

Armed groups arguably do not have any right to conscript individuals under international law (UNHCR, para. 7). As it has been noted elsewhere,

if an armed group adopts a (rebel) law to forcibly conscript civilians in the territory over which it exercises de facto control, civilian populations would find themselves under two competing sets of laws with which it is impossible to comply: to refuse forcible recruitment would violate the rebel law, while to comply would invoke individual criminal responsibility under the State’s domestic law prohibiting insurrection. (Diakonia, p. 15; similarly Somer)

A similar conflict between the law of the armed group and the law of the state would arise when armed groups (like states) punish treason-like offenses. With respect to that situation, however, according to Provost: (1) in order to violate neither rebel nor state law, civilians would simply have to abstain from collaborating with the enemy; (2) this tension between rebel and state law parallels the tension between the law of the occupying power and that of the occupied territory, which is accepted by international humanitarian law; and (3) the conflict of rebel and state law is just an ordinary example of overlapping and contradictory jurisdictions (p. 268). 

These arguments would not hold in relation to the punishment of individuals who refuse to serve in the ranks of the armed group. In this case, the conscripts cannot simply abstain from certain conduct, rather they are required to choose whether to accept being recruited by the armed group and violate the law of the state, or to refuse conscription and violate rebel law. To put the magnitude of this choice into perspective, it is worth recalling, as way of examples, that the Commission of Inquiry on Syria reported that Kurdish armed groups have arrested men who attempted to avoid forced conscription (here, para. 16; here, paras. 42-43), and that, in Sierra Leone, the Revolutionary United Front even killed forcibly conscripted civilians who tried to escape their training camps (SCSL, paras. 1260-1264). By accepting to join the ranks of the armed group, conscripts would expose themselves to charges under domestic criminal law that could include treason and membership in a proscribed organization – serious offenses to which hefty penalties are normally attached. This is also a matter of life or death: persons who join armed groups – whether forcibly or spontaneously – can become targets in the conduct of hostilities (Fortin, p. 395). Additionally, the parallel with the law of occupation suggested by Provost in relation to treason-like crimes would be unhelpful here, given that Article 51 of the Fourth Geneva Convention prohibits the occupying power from conscripting protected persons. Finally, my understanding is that the prerogative to impose mandatory military service is granted only to states under international law, while armed groups do not have a similar right to conscript individuals which could give rise to an ‘ordinary’ jurisdictional conflict between rebel and state law. 

Therefore, while I do not think that armed groups are prohibited from punishing direct participation in hostilities in the ranks of the enemy, I do believe that they are not allowed to punish individuals who refuse to serve in their own ranks.

Conclusion

I suspect that the distance between me and Provost when it comes to the issues outlined in this post is not as marked as it appears. In general, based on my attentive reading of his book, I think that we do agree on more than we disagree. The reflections arising from reading Rebel Courts are also a testament to the complexity and breadth of the book, which tackles so comprehensively the most burning questions related to the administration of justice by armed groups without shying away from controversies and by proposing bold and innovative claims. I congratulate Professor Provost on the publication of this exceptional book, which I recommend to the readers of this blog. 

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