“Rebel Courts” Book Symposium – Rebel Courts: A Tour de Force

About the author(s):

Jelena Pejic is a former Senior Legal Adviser in the Legal Division of the International Committee of the Red Cross (ICRC) in Geneva. In over twenty years with the ICRC, Jelena was responsible for the organization’s legal and policy work on a range of IHL issues, including detention. Prior to joining the ICRC, she headed the International Justice Program at Human Rights First in New York and was a lecturer in International Law at Belgrade Law School.

Professor René Provost’s new book Rebel Courts: The Administration of Justice by Armed Insurgents is a must read for anyone dealing with or interested in the topic addressed and with non-State armed groups (NSAGs) more broadly. Its focus on a little-explored facet of rebel governance is primarily normative and conceptual, but is underpinned by a fascinating review of the practices of a number of NSAGs allowing the reader to visualize the reality tackled in the book. And that reality, needless to say, is messy and hard to unpack. 

As Prof. Provost points out rebel justice has, first, not been the subject of much scholarly attention so far. In that context, his study is ground-breaking. Second, gaining a better understanding of the way in which NSAGs administer justice is notoriously difficult given the secrecy surrounding most rebel activity. I think a third obstacle could possibly be added, which is that examination of rebel justice – by local researchers in particular – has likely been stymied by the hostile attitude of many States in whose territory insurgents operate, thus preventing effective engagement with rebel governance as such. 

The book’s main argument is that it is possible for certain NSAGs to legally establish and operate a system of courts to administer justice in situations of armed conflict. Whether one agrees with the totality of the legal reasoning and conclusions presented, Prof. Provost persuasively demonstrates that, according to his words, “the rebel administration of justice is not in essence a social evil”. It can in some circumstances amount to a “social good”, especially when a measure of lawlessness is the other option. The book, preciously, reminds us that rebel justice where it exists is not exhausted through the operation of criminal processes. It serves also to regulate the myriad social relations of everyday importance for civilians living under NSAG control. Property disputes, inheritance claims, the need to register births, deaths or marriages – to name just a few – are practical issues that need to be resolved by any authority wielding power over territory and persons.  

The book is structured in four chapters devoted, respectively, to rebel rule of law, the legality of rebel courts, the jurisdiction of and due process in rebel courts, and the recognition of rebel justice.  The following brief remarks touch mainly on the legality of rebel courts discussed in Chapter 2. 

Prof. Provost convincingly, in my view, answers the question whether – leaving domestic law aside – insurgents may legally establish courts under international law, and IHL in particular. He shows that nothing in the treaty texts can be taken to suggest that rebels are prohibited from administering justice and that it may in fact be implied that they have a right to do so, and in some cases an obligation. The latter may stem from a duty to prosecute war crimes, to respect and ensure respect for IHL and to apply the doctrine of command responsibility under IHL and international criminal law. He adds that rebel groups also have a duty to respect and secure human rights, illustrating a broader approach to HR taken up in other parts of the book as well. 

In this context, my sense is that the equal treatment in Rebel Courts of IHL and HR applicability and application to NSAGs may have pushed the envelope too far, legally, practically, and politically. It is uncontested that HR law does not bind NSAGs, as groups, de iure. Not surprisingly, I share the ICRC’s view that highly sophisticated NSAGs, controlling persons and territory and performing government-like functions may be said to have HR obligations de facto. Legal views to the contrary, mainly by Western academics, however esteemed, or the pronouncements of experts in international organizations which are said to be solidifying into a consensus on the issue simply cannot create binding international law. It may be useful to mention that States, who can create it, declined to take up a UN HR Council declaration on the HR obligations of NSAG when the idea was circulated not too long ago. 

As is well known, engaging with NSAGs on compliance with the very basic rules of IHL, which expressly applies to rebel groups, is hard enough in practice. The wisdom of introducing another layer of essentially overlapping norms, whose application could in any case not ensure rebel group accountability any more than IHL can, could also be questioned. In political terms, it may be queried whether the invocation of HR law might not make States that are already politically skittish about surrendering, or the perception of “surrendering”, government functions even more skittish.

The book’s approach to HR law is somewhat perplexing given that Prof. Provost delves into the evolving discussion of the scope of the nexus requirement that triggers the applicability of IHL to rebel group action. In a carefully developed argument he concludes, rightly in my view, that the administration of justice by rebel groups in all areas of criminal law – including vis à vis own members and penal prosecutions (un)related to the armed conflict – is governed by Common Article 3 and Article 6 of Additional Protocol II. He also posits that the rebel administration of justice in non-penal matters is likewise related to the conflict and, as a result, governed by IHL. 

It is noted in the book that HR standards on the administration of justice “can play an important role in the regulation of insurgent justice”, but that “there is a danger in construing their import as displacing or replacing IHL” and that a better approach would be to “try and enrich each by reference to the other”.  While one can only be broadly supportive of this statement, the devil, as always, is in the details, which remain vague (in relation to State action, let alone NSAGs). Practitioners – and I write as one – need clarity on what law is binding and on what basis, and what is not. My sense on this issue, not linked to the book, is that an in-depth and non-ideological examination of the relationship between IHL and HR when it comes to NSAG activity is needed among all relevant actors. 

Rebel Justice also convincingly, in my view, answers the question whether rebels can comply with the IHL requirement of a “regularly constituted court” under Common article 3, and have their own “law” under Article 6 of Additional Protocol II. As is persuasively argued in the book, the notion of a court in the circumstances of rebel justice in NIAC must be “constructed on a functional basis”. 

It is said that regular constitution does not necessarily require legislation, but denotes a “deliberate decision by an effective authority to establish a general process to apply identified ‘law’ broadly defined”. Justice must also “form an integral and fixed part of a broader regime of governance”. This is a useful descriptive benchmark the elaboration of which would necessarily entail a further step, and is outside the scope of the book. 

Importantly, Prof. Provost demonstrates that the amalgamation of the notion of a regularly constituted court from Common Article 3 and the requirement of independence and impartiality from Article 6 of Additional Protocol II, as well as from the Elements of Crimes of the ICC Statute (Article 8(2)(c)(4)) is unfortunate, to say the least. These are two different legal demands with practical consequences for the fairness of a judicial process, which international negotiators at the time did not seem to fully appreciate. 

Rebel courts, like others, must apply “law”. An ongoing issue, which remains unresolved, is what law that may be. According to a recent (and rare) State court judgment on point rendered in the Sakhanh criminal case against an NSAG member that took place in Sweden, NSAGs can legally establish a court if it applies law that existed before the outbreak of a conflict or legislation that did not materially differ from such previous law. The situation under IHL is not so clear. 

Prof. Provost draws attention to the discrepancy between the equally authentic English and French texts of Article 6 (2) (c) of Additional Protocol II, usually known only by the “cognoscenti”. Article 6 (2) (c) deals with the non-retroactivity of criminal law, with the former version speaking only of “law”, thus opening the door to interpreting the term to include NSAG law, and the latter referring to “national and international law”. While there is fuzziness as to why this came about, various actors have taken different positions on which version should be preferred. Prof. Provost, rightly in my view, inclines towards the English version, which is more in tune with reality. Importantly, he recalls that rebel “law” must in all cases correspond to the requirements of international law. 

Rebel Courts in Chapter 2 also deals with the requirements of judicial independence and impartiality, examining whether these standards can be met by rebel justice. Impartiality as one of the necessary features of a fair judicial process is easier to achieve by rebel courts than the requirement of independence given that rebel governance usually lacks a separation of powers as is the case in States. In this context, the book’s argument that “insurgent courts may be an arm of the rebellion just as state courts may be an arm of the sovereign authority of the state” and that “in both cases there is no legitimate expectation that the court will be neutral vis à vis the policies of the government or the armed group” may be just a bit too facile. A court’s independence implies that is able to autonomously adjudge cases according to the law in force, regardless of the policies of a current authority. My sense is that, going forward, more reflection by lawyers and practitioners would be useful to define the parameters of when a rebel court may be considered independent. 

The issues briefly outlined above are just a fraction of the rich and thought-provoking subject-matter of Rebel Courts. The breadth and depth of the normative and conceptual analysis presented, the weaving together of different bodies of international law, and the practical illustrations provided have produced a study that can only be called a tour de force. At its very end Prof. Provost issues a call to action for international lawyers to further address the rebel administration of justice.  One can only hope that his plea will be heard.

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