“Rebel Courts” Book Symposium – Rebel Justice Can Be Music to My Ears

About the author(s):

William A. Schabas is professor of international law at Middlesex University in London, emeritus professor of international criminal law and human rights at Leiden University and distinguished visiting faculty at the Paris School of International Affairs, Sciences Po. His most recent books are The Customary International Law of Human Rights and the published version of the course he delivered at the Hague Academy of International Law in January 2021 entitled Relationships between International Criminal Law and Other Branches of Public International Law. Professor Schabas is an Officer of the Order of Canada and a member of the Royal Irish Academy.

Recently, I was asked by a prominent activist for the rights of indigenous peoples whether international law prohibited the taking up of arms when all other measures had failed. Her eyes lit up when I pointed to the third recital in the Universal Declaration of Human Rights: ‘Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.’

But if human rights law provides a friendly nod to rebel of oppressed peoples, René Provost suggests that the message from international criminal law and international humanitarian law is somewhat more discouraging. He deals with issues related to this issue in Chapter 2 (IV). The context, set out earlier in the Chapter, is justice delivered by the Taliban and Islamic State. These are organisations for whose aims and policies most readers of this comment will have little sympathy. That may colour how we assess the principles at stake.

How do I explain to my indigenous friend that while it is right to rebel against tyranny and oppression, until the rebellion is entirely successful its leaders may be prosecuted as war criminals for practically everything they do?

René’s discussion of this and other issues is consistently balanced and cautious. He provides readers with an academic examination of the questions rather than a polemic that campaigns for an intransigent approach to impunity, welcoming anything that will broaden the scope of international law. He makes a prudent, sober assessment of the law as it is as well as its direction of travel. Nevertheless, sometimes the conclusions are troubling.

Nearly two decades ago, I recall questioning some indictments of the Special Court for Sierra Leone. Although the Prosecutor seemed balanced in charging all of the combatant groups, including the pro-government forces, the rebels were alone subject to the joint criminal enterprise theory, by which their liability was broadened because they were part of a ‘criminal enterprise’ to overthrow the government. The pro-government forces, on the other hand, were obviously not prosecuted on this basis. In this way, international criminal law tilted in favour of those in power and against those seeking to obtain it.

When the civil war in Sierra Leone began in the 1990s, rebellion against ‘tyranny and oppression’, to reprise the words of the Universal Declaration, seemed like a good idea. After he was challenged, the Prosecutor amended the indictment and tweaked the JCE III language so as to treat the rebels as a kind of criminal gang, and that passed muster with the judges.

In Rebel Courts, René considers some recent decisions of the International Criminal Court that deal with acts of rebels who control and administer territory. The tendency in some early decisions was to view this as a situation analogous to that of occupied territory. Later, the Prosecutor and the judges seem to have understood that in the case of rebel groups and non-international armed conflict it is not correct to merely transpose the rules of occupation.

Nevertheless, there is no doubt that the rebels can be prosecuted for certain acts committed against people over whom they exercise control, that is, the population of the zones they govern. Yet there is no liability for government forces and those who command them if they do the same thing within the territories that they control.

The Al Hassan decision provides a good example. Al Hassan was a police official in Timbuktu over a period of several months in 2012 when a group affiliated with Islamic State controlled much of northern Mali. His trial is currently underway. But in a preliminary ruling on the charges known as the confirmation decision, a Pre-Trial Chamber confirmed that he could be tried as an accomplice because the rebel courts had prosecuted townspeople for the crimes of adultery and the sale of alcohol. En passant, René’s references to the decision seem to indicate that he is unimpressed with much of it.

The Al Hassan case is based on a text in the Rome Statute derived from common article 3 of the General Conventions. It makes punishable, in a non-international armed conflict, ‘[t]he passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable’. René points to the chapeau of article 6(2) of Additional Protocol II, where the requirement of a ‘regularly constituted court’ is replaced with ‘essential guarantees of independence and impartiality’, but this nuance is not reflected in the Rome Statute provision. Both texts confirm that rebel courts are not prohibited per se. Yet it seems that to the extent they fail the ‘independence and impartiality’ test, as the Al Hassan confirmation decision appears to indicate, pretty much everything they do becomes a war crime.

The Elements of Crimes label the offence the ‘war crime of sentencing or execution without due process’. They also specify that ‘[t]he conduct took place in the context of and was associated with an armed conflict not of an international character’. This is known as the ‘nexus’ and it is a requirement for all war crimes. But what is the nexus between adultery committed in Timbuctu while the rebels hold control and the armed conflict? How can the sale of alcohol be associated with the armed conflict? Of course, the simple answer is that it is not the punishable act – adultery or bootlegging – that needs to be connected to the civil war but rather the trial and conviction. That conclusion suggests that the nature of the crime is really irrelevant.

We bristle at the nature of the crimes that were prosecuted by the rebel courts in Timbuktu. Some of them, like adultery, should not be crimes at all. But rebel courts also prosecute crimes that demand prosecution. The so-called procedural obligation that has been developed in the case law of the Inter-American Court of Human Rights, the European Court of Human Rights and the Human Rights Committee imposes a duty to investigate and prosecute violations of the right to life and the prohibition of torture and ill-treatment. 

Suppose, then, for the sake of argument, that a rape took place in Timbuktu while it was ruled by the fundamentalists, or in a Taliban-controlled zone of Afghanistan, or somewhere else where rebel courts are operational, with all of their shortcomings and imperfections. To whom should the crime be reported? Ought the victim to be warned that if she makes a complaint and provides evidence for prosecution she might risk being deemed an accomplice to a war crime punishable under the Rome Statute?

René’s remarkable study prompted me to reread the judgment in United States v. Alstötter et al., the famous ‘Justice case’ of the subsequent proceedings at Nuremberg. Seventy-five years later, it remains the leading judicial pronouncement on the international criminal responsibility of judges and prosecutors. The Nazi jurists were prosecuted for the consequences of a perverse justice system that they administered, in other words, for their enforcement of racist policies directed at Jews and Poles, and for their contribution to the nacht und nebel system of enforced disappearances. Due process was of course no way to describe the Nazi courts. But the crime was not administering an unfair court system as such.

The Nazis were convicted of crimes against humanity, not war crimes. The idea that unfair trials before courts not properly constituted was punishable as such seems to have originated with the grave breach provisions and common article 3 of the Geneva Conventions, adopted in 1949. The International Criminal Court seems on an opposite trajectory to that of the Nuremberg tribunal, focussing on the institutional dimension rather than the substance of the prosecutions.

‘[A]n oversimplified reading of the requirement that courts must be regularly constituted must be resisted’, is René’s trenchant conclusion. ‘Indeed, there is little basis to conclude that insurgent courts cannot be regularly constituted.’ He favours a ‘compromise approach’, acknowledging that in some circumstances the rebel courts will provide something that is ‘justice only in name’ but that in others they will be ‘imperfect but not flawed in every respect’. Not exactly Mozart, to borrow Clemenceau’s famous line, but recognisable as music nevertheless.

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