“Rebel Courts” Book Symposium – Rebel Courts and the Rule of Law

About the author(s):

Tom Ginsburg is the Leo Spitz Professor of International Law at the University of Chicago, where he also holds an appointment in the Political Science Department. He is also a Research Professor at the American Bar Foundation. His latest book is Democracies and International Law (2021). He currently serves a senior advisor on Constitution Building to International IDEA.

Some years ago, when I was doing research on rebel governance, I heard a story about a truck driver going from Syria to Iraq through ISIS-held territory. He paid customs duties to ISIS, and continued on to the area controlled by the Iraqi state. When he reached a government checkpoint, the Iraqi officials honored his ISIS-issued customs receipts, so that he did not have to pay a second charge. As Rene Provost shows in this masterful book, Rebel Courts, such stories are quite common.   Rebel groups are able to extend effective control over large territories, and in some cases are able to govern them with the full panoply of state-like instrumentalities. In other cases, governance is mixed, and there is tacit or open cooperation between state and rebels, or among competing rebel groups, even as there is also open conflict. Rebels and states in conflict thus sometimes do what the international community is reluctant to: acknowledging that facts on the ground require grudging recognition of the efficacy of rebel governance.

Courts turn out to be a central site of rebel governance in many contexts, because dispute resolution is a universal need. Rebel Courts tackles this phenomenon, and presents two major accomplishments in a single book.  First, it provides broad and deep documentation of the various ways in which rebel groups use law and adjudication as part of their governance practices. Provost consolidates and organizes a growing literature, structuring the evidence in a manner that makes good sense to lawyers. Second, the book is a deeply learned work of public international law, analyzing the extent to which subnational rebels are proper subjects of various international legal regimes. Provost argues persuasively that in many cases rebel groups are capable of complying with international norms with regard to the administration of justice, and indeed are properly subject to the strictures of international humanitarian law in many cases.

On both of these scores, the book is an unmitigated success, and it will be useful to scholars of comparative politics, international relations and international law, as well as to practitioners in international institutions that must decide how to engage with facts on the ground in situations of armed conflict. The book does not, however, provide a systemic analysis of whether rebel practices in fact comply with international norms.  This is not the goal of the book, but it is a question to which readers are inclined after completing it.  If some rebels, some of the time, in some places, are capable of administering some justice in ways that comply with international norms, that is a reason for taking rebel law seriously. But this is a far cry from suggesting the rebel law should be celebrated or automatically recognized.

To grapple with that question, this intervention turns to the rule of law, the “essentially contest concept” that is one of the central tropes in modern discussions of governance. Provost rightly points out that, however one defines the rule of law, what most definitions have in common is the normative centrality of the territorial nation state. Virtually every definition imagines a government in exclusive control of a territory and that acts upon its citizens. The monopoly on the use of force necessitates constraint, and so most definitions have at the core the idea that government itself must be subject to the law. Thicker definitions might include certain basic human rights, while others, notably that of Lon Fuller, argue that certain procedural rules give the law an “inner morality.”  The regularity and predictability that come with the rule of law prompted EP Thompson famously to pronounce it an “unqualified human good.”

Provost opens up that perspective to close scrutiny. By looking at the phenomenon of rebel governance, the author forces us to explore the outer boundaries of the rule of law concept.  One thing we learn from the rebel use of law is that the state is vulnerable to challenge precisely when it is not able to establish the rule of law.  Rebels that deploy law and utilize courts are able to extend their legitimacy, provide basic services to a population, control their own agents, and make the case that their service delivery is better than that of the government that they oppose.  For rebels, Provost shows us, competition over the quality of governance precedes and extends territorial control, rather than following it.  In situations in which multiple governments call exist compete and cooperate, traditional ideas of certainty and authority vanish into a fog of overlapping control.

Does the rule of law concept apply at all to rebel groups? Provost argues that it does.  He recognizes that traditional definitions are tricky to apply when groups do not claim formal legislative power or have hierarchical courts with chains of commands.  But, he holds, we can expect that rebels are capable of observing a very thin version of the rule of law, so long as the administration of justice is part of a broader system of governance, that it is carried out in a regular fashion, includes minimum elements of procedural fairness, and rests on a narrative of social justice.

The first three of these seem quite right to me. For populations under rebel jurisdiction, regularized courts with minimum elements of fairness may be an attractive alternative to those of the state or to no justice at all. Provost extensively documents how groups like the FARC in Colombia or the Taliban in Afghanistan are able to deliver justice in legitimate ways.  I am less certain that there has to be a narrative of social justice.  To be sure, law everywhere and always rests on some claim of social justice. But precisely because it is ubiquitous, it seems unnecessary as a definitional element of the rule of law. For rebel groups, social justice claims will be tied to their particular ideological programs.   Some justice claims seems to sound in fairness or redistribution; others, like those of ISIS, strike me as consisting of “unqualified human bad”, to paraphrase E.P. Thompson. 

What justice requires is deeply contested, and so a full normative evaluation of rebel courts, ultimately, cannot shy away from the particular normative programs that the rebels are pursuing.  Such judgements will continue to confront the international actors who have to decide whether to recognize rebel groups and how to assess their court practices.  With Provost’s rich book in hand, those actors now at least have a framework for thinking about it.

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