“Rebel Courts” Book Symposium – Legality of Rebel Courts? An Assessment of the Islamic State in Iraq and Syria and the Taliban in Afghanistan

About the author(s):

Marta Furlan holds a PhD in International Relations from the University of St Andrews. Her doctoral dissertation, funded by the Handa Center for the Study of Terrorism and Political Violence at the University of St Andrews, studied governance by Salafi-Jihadist armed groups in Iraq, Syria, and Yemen from a comparative and multi-dimensional perspective. Her research focuses more broadly on violent non-state actors, rebel governance, civil wars, and political Islam. She is currently working as a consultant on Syria and Yemen for the NGO Geneva Call in the context of the Generating Respect Project carried out with the University of York.

When armed groups in zones of armed conflict succeed in conquering territories and establishing their control thereupon, they often (though not always) proceed to engage in practices of governance (Arjona et al. 2015). As part of their effort at (insurgent) governance, armed groups can opt to intervene in a variety of tasks, such as the provision of security and justice, the collection of taxes, the provision of public goods (e.g. education, electricity, and healthcare), the regulation of public conduct (Florea 2020, Furlan 2020, Huang 2016, Arjona 2016). Among those governance functions, the establishment of courts aimed at administering justice has become a significant practice of non-state armed groups (Ledwidge 2017, Cook et al. 2020, Ginsburg 2019).

However, and as Provost rightly notes in the introduction to his book, “there is no full-length academic analysis of rebel justice that studies the practice across different conflicts” (p.3). Proceeding from the identification of this lacuna, Provost sets to make a contribution that every scholar of armed groups, civil conflict, international law, and rebel governance is going to appreciate. As it is clear by the end of the book, as many different cases of armed groups involved in the operation of rebel courts are analysed in detail from an original legal perspective, Provost has successfully achieved his objective. 

Through the legal analyses of different cases of rebel rulers, Provost demonstrates that it is possible for non-state armed groups in situations of armed conflict to legally establish and operate a system of courts to administer justice. In the framework of this broad analytical effort – and this is a purely personal inclination – I find particularly interesting the investigation offered in the second chapter, which assesses the legality of rebel courts according to international law through the cases of the Taliban and the Islamic State. Given the prominence that the administration of (fundamentalist Islamic) justice had in the governance system implemented by these two insurgent groups (Cook et al. 2020, Giustozzi & Baczko 2014), they seem particularly well-suited to illuminate the issue of the legality of rebel courts. 

However, while the choice of the Islamic State is reasonable, and is indeed justified convincingly by Provost, a question that accompanied me throughout the second chapter was whether it would have been even more interesting to challenge the reader, and the community of scholars and policymakers, with an ideologically similar group that survives to this day as provider of governance and rebel justice, such as Hayat Tahrir al-Sham in north-western Syria (Lister 2016, ICG 2019). In fact, while the military defeat of the Islamic State’s governance system does not reduce in any way the significance of its experience, focussing on rebel groups still engaged in the administration of justice could have a more immediate impact on the way in which we deal with those groups and approach the contexts of conflict in which they operate.

As with the other cases studied in the book, Provost effectively combines in-loco interviews (in Iraq), remote interviews (made understandably necessary by the volatile security situation in Syria and Afghanistan), and secondary sources. A praise that I feel the need to insert here is Provost’s effort (one that is not seen much in the legal scholarship, p.18) to conduct fieldwork to understand as accurately and truthfully as possible the reality of rebel justice. This is even more commendable as the author has been able to navigate very (politically, geographically, linguistically, culturally, religiously) diverse contexts as Sri Lanka, Iraq, and Colombia. Despite the impossibility of travelling to Syria and Afghanistan, Provost has nonetheless been able to offer rich accounts of the administration of rebel justice in those territories that leave the reader well-informed and satisfied.

To return to the question of the legality of rebel justice under public international law, Provost notes (p.102) that, while a negative answer has most often been defended (on the one hand, it has appeared unlikely that international law would accept any legal validity of the rebel administration of justice, on the other hand, it has appeared unlikely that rebel courts could meet even the most minimal requirements of due process demanded under international law), international law might nonetheless have evolved to allow for the possibility, at least in some circumstances, of the legal recognition of rebel justice. Here, to formulate an assessment on the legality of rebel courts, Provost appropriately turns to the legal frameworks of “international humanitarian law, as a body of rule designed to regulate the behaviour of belligerents in armed conflicts, and international human rights law, as a body of rules especially concerned with the conditions of validity of the administration of justice” (pp.101-2).

It is upon surveying the norms related to the rebel administration of justice in international humanitarian law, international human rights law, and international criminal law that Provost’s most challenging and insightful arguments are presented. He suggests that there is very little basis to conclude that insurgent courts cannot be regularly constituted (pp.150-67). Rather, it seems to emerge that in situations of international and non-international armed conflict armed groups have a right to establish their own courts. Specifically, it is the duty to ensure compliance with international humanitarian law and the duty to secure human rights that suggest that, in certain circumstances at least, armed group may have a duty to administer justice (pp.166-7). Building on this understanding, Provost goes further and argues that rebels can regularly constitute courts as long as that corresponds to a deliberate decision taken by an effective, established authority to institute a general process to apply law – with the latter broadly defined (pp.195-202, 215). On this same line, rebels can also establish courts capable of offering the required guarantees of independence and impartiality (p.216).

However, and as Provost rightly emphasizes, it is important to bear in mind that how a court can be regularly constituted by a non-state armed group does not necessarily reflect what states must do to regularly constitute a court (p.215-6). In this latter regard, Provost makes the fundamental point that acknowledging that in some areas of the world, in some periods of time, non-state actors may come to exercise authority implies the need to adapt the regime regulating the exercise of that authority to reflect the reality and capacities of those non-state actors (p.216). 

Provost’s assessment on the legality of rebel courts is most relevant in that it paves the way to a new understanding of armed groups that seeks to encourage the latter to engage in governance practices that are closer to the value and the principles defended in international humanitarian law. As stated by Provost in clear terms (p.217), rejecting altogether the possibility of the rebel administration of justice or imposing conditions that are impossible to meet for the vast majority of armed groups do not seem reasonable and desirable alternatives. Provost’s “compromise approach” has indeed proved extremely helpful in his analysis to differentiate between courts such as those of the Islamic State (irregular, not independent, and not impartial) and courts such as those of the Taliban (imperfect yet not entirely flawed). Extending Provost’s proposed framework of analysis to other instances of rebel rulers engaged in the administration of justice will enable scholars to reach a more accurate understanding of rebel justice and will enable policymakers to conceive more appropriate strategies to deal with those rebel rulers on a case-by-case basis. As NIACs continue to be observed worldwide and armed groups engaged therein continue to prove themselves capable of conquering territories and imposing systems of rebel administration, reference to Provost’s analytical framework is as welcome as it is needed.

The relevance of Provost’s work is well summarized by the author himself in the conclusive chapter. It is in this final section, however, that I would have liked to read more (perhaps driven by the anxiety of separation that always accompanies me as I approach the end of a book I so much enjoyed). While each previous chapter contains its own conclusive observations, in this final section I would have liked the author to expand somewhat more on the implications, contributions and limitations of his study, as well as to share more of his thoughts on which avenues of research his study has opened to future scholars.

To conclude my comments, and I apologize for repeating myself, Provost has made with his book a remarkable contribution to our understanding of rebel justice from a legal perspective. Anyone with an interest for armed conflicts, non-state armed groups, rebel governance and international law should not miss reading it. 

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