“Rebel Courts” Book Symposium – Author Response to Contributors

About the author(s):

René Provost Ad.E. FRSC is Professor of Law at McGill University, where he was the founding Director of the Centre for Human Rights and Legal Pluralism. His books include: Rebel Courts – the Administration of Justice by Armed Insurgents (Oxford University Press, 2021); International Human Rights and Humanitarian Law (Cambridge University Press, 2002); State Responsibility in International Law (Ashgate/Dartmouth, 2002); Mapping the Boundaries of Belonging: Law Between Religious Revival and Post-Multiculturalism (Oxford university Press, 2014); Culture in the Domains of Law (Cambridge University Press, 2017); Confronting Genocide (Springer Verlag, 2011); and Dialogues on Human Rights and Legal Pluralism (Springer Verlag, 2013).

It is both terribly pleasing and terrifying to be invited to have a book symposium around a recent book. A substantive conversation with a group of diverse, insightful, and engaged readers is exactly the kind of exercise that academia should more systematically foster, but in reality most of us are over-solicited in too many different directions to do so very often. I am therefore truly grateful to the eight contributors to this symposium for having agreed to share their thoughts about Rebel Courts. At the same time, the exercise feels somewhat like a doctoral defence, with eight examiners firing comments in all directions. I will do my best to offer some brief responses that I hope can deepens the questions that are asked about the administration of justice by non-state armed groups in conflict zones.

Mark Drumbl, with the lyricism and depth that we have come to expect from him, relates the touching and tragic story of Timbuktu, a film in which a very ordinary event involving very ordinary people becomes entwined in the rebel administration of justice. This is a propitious place to pick up the conversation about rebel courts, in that it takes our attention away from the grand questions raised by armed conflict (is there a just cause? Is the war fought humanely? What will happen if the rebels take over?) to focus on the ways in which, even in warzones, ordinary life goes on. We lawyers tend to be court-obsessed, in a rather narrow sense, perhaps because we (secretly?) imagine ourselves being appointed to the bench one day. Drumbl rightly urges us to include in our legal imaginations the multiple sites in which law is developed, interpreted, and applied, even though these may lack the majesty of state courts. Thus, the questions that are raised in Rebel Courts about the administration of justice by non-state armed groups do invite a legal reflection on a range of other practices, including how prison gangs impose disciplines on inmates across entire carceral systems, the dispute-resolution mechanisms of particular trades that span across many state jurisdictions, courts established by particular communities, how universities sanction misbehaviour by students or faculty, and so on. The grand theme that animates my study of the rebel administration of justice is legal pluralism, and Drumbl is surely right to admonish jurists to broaden the scope of practices we examine using the lens of legal analysis. Only in this way can we hope to grasp the dynamics of multiple legalities that obtain in all societies, in peace just as much as in war.

Marta Furlan, as someone who has worked for several years on governance by jihadist groups in the Middle East, is especially drawn to the example of the court systems established by the Taliban in Afghanistan and the Islamic State in Iraq and Syria. As she notes, neither case study remains quite what it was, with the Taliban now forming the government of Afghanistan and ISIS reduced to a more mobile and episodic insurgency that does not include justice governance, but there are other similar groups in other conflicts that follow similar patterns. It was very much my hope that Rebel Courts would not be any kind of final word on the question of the rebel administration of justice, but rather that it would invite further case studies that could complicate or contradict some of the arguments in that book. Part of what needs to be done, Furlan stresses, is to carry out field work to establish a reasonably solid factual understanding of what armed groups are doing on the ground, to pierce the fog of self-promotion by these groups and disinformation by the states against which they fight. Legal ethnographies, although they have existed for a very long time, have been nearly exclusively produced by anthropologists rather than by lawyers. Such ethnographies are precious sources, but they reflect a certain sensitivity of the anthropologist that skews towards the descriptive and cultural rather than the normative and analytical (with some notable exceptions). There is a rising movement to incorporate an ethnographic dimension to doctorates in law, including in public international law, which in turn raises challenging questions of methodology, ethics, and legal rhetoric, the consideration of which is likely to enrich law as an academic discipline over the next several years.

Tom Ginsburg, drawing from his own research on ISIS in Iraq, directs our attention to the plural and contested nature of public governance in many, if not all, countries. State sovereignty and the rule of law are often imagined as a necessary tandem, with law as a device essential to project the exclusive authority of the state over a population and territory. The reality, rarely acknowledged in legal doctrine, is that the state can never entirely displace all other forms of public authority, even in countries with the most stable and effective governments. In some places, the social and geographic reach of governmental authority is severely limited, creating spaces in which other actors like non-state armed groups can emerge and dominate. Law abhors a vacuum, we might say, such that if official law weakens, there will be a natural tendency to replace it with other laws, including rebel laws. This does not occur by way of a clearcut exchange but rather progressively, with various laws and justice practices intermingling in a given place and time. The conundrum of the rebel administration of justice is thus not one of the absence of law but rather its overabundance: there are too many laws, sometimes in conflict and sometimes not, and there is a need to manage this plurality. I argue in Rebel Courts that the idea of the rule of law can be adapted to cover both state and non-state justice practice, a good reason for ‘taking rebel law seriously’ (Ginsburg’s phrase, that I wish I had thought of myself). Ginsburg expresses scepticism that an element of the rebel rule of law is that armed groups embrace a narrative of social justice, because it is in any case ubiquitous.  I might respond that some groups like ISIS explicitly rejected the concept of the rule of law as anathema to the path revealed by God to the community of believers. In that group’s narrative, governance was guided by faithfulness to the word of God rather than by goals of social justice, making its extremely unlikely that ISIS ‘justice’ would align with even a barebone concept of the rule of law.

Hannes Jöbstl in his remarks focuses on the requirement that courts imposing a criminal sanction in a conflict zone be ‘regularly constituted’, in the expression used by Common Article 3 of the Geneva Conventions. He notes that this is a requirement under international humanitarian law that is linked to the right to be tried by a court ‘established by law’ in human rights law. Indeed, it can be surmised that the need for the court to be regularly constituted forms part of the fundamental guarantees recognized as indispensable to a fair trial. The formulation of the corresponding provision in Article 6 of Additional Protocol II diverges significantly from Common Article 3, making no reference to the regular constitution of courts. Instead, Protocol II demands that judgments be pronounced by a ‘court offering the essential guarantees of independence and impartiality’. This has resulted in divided opinions among scholars as to whether the need for courts to be regularly constituted has been abandoned in favour of the requirement that they be independent and impartial. In Rebel Courts, I argue that these are quite distinct notions, such that a court could be regularly constituted and yet fail to be independent or impartial, or alternatively that a court that is ad hoc or improvised rather than regularly constituted could nevertheless prove independent and impartial. The point is that Common Article 3 also applies to conflicts governed by Article 6 of Protocol II, with the result that these requirements are cumulative. Jöbstl, while in agreement, tackles the matter from a different angle, exploring whether Protocol II could constitute subsequent practice or a subsequent agreement which, under the law of treaties, could modify an earlier convention. This is an interesting idea, although as he notes it is subject to showing that the parties intended to modify the earlier treaty, which is not something that is in evidence in either the travaux préparatoires or in state practice. What is more, the fact that there are fewer parties to Protocol II than to the 1949 Conventions is another hurdle to showing that the older requirement has been abandoned. The confusion was heightened in the ICC regime, with the Rome Statute reproducing the requirement of a ‘regularly constituted’ court and the Elements of Crimes fusing this requirement with that of independence and impartiality. Jöbstl underscores the inconsistency but opines that it amounts to a reasonable compromise, given that judges and prosecutors most likely to be accused of violating this norm will rarely have been in a position to ensure that the court had been regularly constituted. One might think that the leaders of armed groups are also likely to be accused of such a crime, for precisely their failure to constitute courts regularly. What’s more, this suggests either that international humanitarian law and international criminal law are drifting apart, or the colonisation of the former by the latter. Neither seems desirable, leading to conclude that the position adopted in the ICC Elements of Crimes is simply inconsistent with applicable and binding norms of international law.

Jelena Pejic approaches the question of the legality of rebel courts pursuant to international humanitarian law and (possibly) human rights with the sensibility of someone who spent an entire career weaving together the standards of international law with the demands of humanitarian operations. As she rightly observes, practitioners in organisations like the ICRC require clarity as to what is binding and on what basis. Indeed it would be paradoxical, to say the least, if humanitarian law were interpreted in a manner that failed to translate into better humanitarian protection on the ground for the victims of war. Pejic is thus broadly sceptical of the de jure applicability of human rights law to non-state armed groups, preferring the Red Cross position (which she did much to shape) that, at best, human rights may have de facto implications for armed groups. We may debate the extent to which the train has already left the station on the direct applicability of human rights standards to non-state actors like armed groups when they wield authority over a civilian population, but there is no denying that the overlapping application of two regimes like humanitarian law and human rights does complicate the frame of reference. In addition, no one will seriously challenge the claim that holding armed insurgents as bearer of obligations under human rights law is a more frontal assault on state sovereignty that will be vigorously resisted by governments. What is to gain, then, especially if one adopts a wide understanding of the nexus requirement that makes international humanitarian law applicable to all matters coming before rebel courts, in civil and penal matters? One reason is the complementarity of human rights and humanitarian law. In some respects, human rights comes to supplement zones of silence in humanitarian law, for instance the regulation of justice in civil matters on which there is nearly nothing in the Geneva Conventions and Protocols. For due process guarantees, humanitarian law borrowed standards directly from human rights, and it is ineluctable to turn to the latter to interpret the former, given the enormously more significant practice in human rights. Another reason is the limited applicability of humanitarian law, leading to constant debates as to whether it is legally applicable to a given situation, and ceasing to be so when active hostilities end, even if rebel governance endures (as humanitarian law does not know the concept of belligerent occupation at the hands of a non-state actor). As I argued many years ago, each regime has its own autonomous logic and function, but there is no denying that they are deeply interconnected.

William Schabas comes to the question of insurgent justice from a perspective that is rooted in international criminal law and human rights law much more than humanitarian law, and is troubled by some of the conclusions reached in Rebel Courts. One troubling aspect is the uneven treatment, in the law, of the administration of justice by the state and by armed groups. One instance is the difference between the regulation under international law of the governance of the state and of armed groups. Unlike situations of international armed conflicts in which acts of governance by the state in occupied territory are tightly regulated, there is no equivalent for situations of non-international armed conflicts. As mentioned above, I argue in Rebel Courts in favour of a wide interpretation of the nexus requirement between an impugned act and the conflict, to conclude that every aspect of the administration of justice by armed groups is governed by international humanitarian law (and, in turn, international criminal law). The basis for such a position is that the existence and actions of the group as a whole are defined by their link to the insurgency. Rebel courts are part and parcel of the project of insurgency. On the contrary, states are not defined wholly by their involvement in the conflict, and much of what they do predates and is unrelated to the hostilities. As a result, state justice mostly lacks the nexus to the conflict that would bring it under the umbrella of international humanitarian law. If a couple seeks a divorce before a rebel court, that will be governed by humanitarian law; if they do the same before a state court, it will be governed only by human rights law. Schabas is absolutely right that this can have serious consequences when combined with the expanded doctrine of joint criminal enterprise, such that the victim of domestic violence who testifies against her attacker before a rebel court could be committing a war crime if that court turns out not to be regularly constituted, not independent and impartial, or the trial unfair. In some ways, this echoes what happened to Omar Sakhanh before the courts of Sweden, where he was sentenced to life in prison as a result of the unfairness of a trial in which he played no part. My impression is that the discomfort owes much more to expansive mode of participation doctrines in international criminal law than to the wide interpretation of the nexus requirement in humanitarian law.

Alessandra Spadaro offers a close reading of the concept of ‘rebel jurisdiction’ developed in Rebel Courts. This is an example of the type of more technical issues that arise when the rebel administration of justice is analysed seriously as a legal practice, calling for a granular analysis in which many fundamental questions demand to be resolved. This was largely terra incognita, and in the book I attempted to offer general remarks on the ratione materiae, ratione persona, and ratione loci dimensions of rebel jurisdiction, with a few specific examples that emerged from field work on rebel justice. One example was the legality of the rebel punishment of providing information to the government, something nearly all armed groups do. I found that there is nothing in the idea of jurisdiction, in existing norms of humanitarian law or human rights, nor in the practice of states that would lead to conclude that this is a violation of international law, a conclusion with which Spadaro agrees. Another example is the punishment of participation in hostilities against an armed group, including by government soldiers, something very few armed groups do. I argue that this exceeds the jurisdiction of armed groups, because it applies to individuals who are by definition beyond the reach of the group’s authority when the ‘crime’ is committed. This is in contrast to the state’s jurisdiction to punish participation in armed insurgency, which is grounded in the state’s sovereignty over the entirety of its territory, even if that sovereignty is temporarily ineffective in some parts of that territory under rebel control. Spadaro finds this position and the resulting conclusion unconvincing, and suggests that armed groups should indeed have jurisdiction to prosecute enemy fighters. She notes that I do not seem to have issues with the extraterritorial reach of rebel laws in some cases like the LTTE Children Protection Act, which gave Tamil Tiger courts jurisdiction over sexual abuse of children committed ‘outside Tamil Eelam’ (p255). I would simply say here that this reflects an exception to jurisdictional territoriality in state practice, in some ways similar to universal jurisdiction for international crimes (which I view as applying to rebel jurisdiction as well). Spadaro then notes that sometimes government soldiers do fight in territory under rebel control, for instance in raids by special operations forces. I would maintain that my argument rests not on territoriality per se but on effective authority (indeed, one might add that the concept of ‘territory’ is a constructalready laden with elements of authority). Obviously, even special operations forces operating deep into enemy territory are not under the effective control of non-state armed groups. She finally notes that Article 6(5) of Protocol II states that “At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in hostilities”, which seems to imply a pre-existing right to prosecute, even for armed insurgents. This is indeed a valid point, although ultimately inconclusive. It must be related to the retroactive attribution and legitimation as state action of internationally wrongful acts committed by an insurrectional movement that becomes the new government, pursuant to Article 10 of the UN Articles on the Responsibility of States for Internationally Wrongful Acts. This is a conceptually hazy provision that is ‘not obviously illuminating’ (p99) on the initial lawfulness of any rebel prosecution for participation in hostilities. Spadaro ends with a consideration of the punishment by insurgents of the refusal to serve in the group, a practice not uncommon in certain armed conflicts. This is another interesting question, not considered in Rebel Courts, and I tend to agree with her that this is contrary to the prohibition of forced labour and individual freedom of opinion. This is so not only because the exceptions found in human rights treaties like Article 8(3)(c)(ii) of the ICCPR relate only to states, but also more generally because the right of states to impose conscription reflects the idea of sovereignty and the attendant right of states to take measure to protect it. International law proclaims no corresponding interest for armed groups engaged in armed insurgency.

Finally, Megan Stewart turns to the recognition of rebel Justice by a range of actors, including the International Criminal Court, third states, the territorial state against which the insurgents are fighting, and other non-state armed groups present in the same territory. She views the rise of rebel courts as a rolling back of state sovereignty, to some degree, and the corresponding emergence of rebel sovereignty. These competing sovereignties thus clash not only through arms on the battlefield but also through governance on the justice field. Although throughout Rebel Courts I speak of ‘rebel Justice’, ‘rebel governance’, ‘rebel jurisdiction’, and so on, I do not invoke the idea of ‘rebel sovereignty’. In the initial exploration of the viability of the idea of rebel justice, I raised the question of whether the doctrine of state sovereignty amounted to the negation of the possibility of rebel justice (p87). As writers like Martti Koskenniemi have noted, sovereignty is a concept with no fixed meaning. It embodies a tension between a totalizing claim to unfettered authority and the reality that state authority is always partial, contested, limited. Not all competing sources of authority are cast as claims of sovereignty, however. Beyond the claims of other states, in some cases of indigenous peoples, and perhaps of other peoples exercising their right to self-determination, most challenges to state authority are not rooted in sovereignty. To invoke the idea of ‘rebel sovereignty’ is to make a claim as to the legitimacy of the authority of armed groups in conflict zones, whereas international humanitarian law remains agnostic as to whether that is so. On a separate point, Stewart underscores the paradox that the recognition of rebel justice by an institution like the International Criminal Court both undermines and propagates a state-centric vision of the administration of justice. If the ICC were to apply complementarity vis-à-vis rebel justice, it would of course deny that only states can validly administer justice; on the other hand, as I argue in Rebel Courts, the model of a tribunal that warrants recognition under the Rome Statute is based on state courts, such that rebel courts have to align themselves with that model in order to gain recognition. Stewart fears that this may stifle local practices that are better adapted to realities on the ground. I am sceptical that potential ICC complementarity is likely to be a driving force in designing justice institutions within armed groups. It seems more likely that it is the ICC that will be pressured to be more flexible in its appreciation of local justice for the purpose of complementarity.

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