Legal Documentation for Persons Living Under the Control of Armed Groups: Humanitarian Needs and Responses

About the author(s):

Xiaochuan Yu is a MA candidate in Development Studies at Graduate Institute of International and Development Studies (IHEID). She specialized in security, conflict and peacebuilding with the geographical focus on the post-Soviet space. She has researched on various security issues of global concerns, such as non-state armed groups, Passportization, and repatriation of transnational jihadists. Her critical analysis of post-Soviet conflicts developed from her academic studies and her operational experience in different international organizations and NGOs.

Medea Vanessa Segantini is completing her MA in International Affairs, specializing in Global Security and Human Rights& Humanitarianism at IHEID (Geneva Graduate Institute). Recently she has joined the Geneva Center for Security Policy as Junior Professional Officer. Her expertise and research interest lies in counterterrorism, IHL, non-state armed groups, conflict mediation and women's inclusion in decision-making processes.

Angie Bittar is a Syrian-born MA Candidate in Development, specialising in Power and Conflict at the Geneva Graduate Institute. She is currently completing her dissertation, attempting to reimagine the Global Terrorism Database and explore the gaps in our understanding of terror overall. Her academic focus and expertise lies primarily in political violence, non-state armed groups, postcolonial studies, and critical theory, with a regional focus of the Middle East and North Africa.

Introduction

Most of today’s conflicts are non-international, i.e., they stem from violence between government authorities and non-state armed groups (NSAGs) or between NSAGs. In areas under the control of NSAGs, the State’s ability to provide services is often limited. In these situations, NSAGs might move to fill the vacuum left by the State by setting up a state-like administration. Legal documentation plays a critical role in these administrations; it is necessary to access essential services and rights, such as freedom of movement, access to local justice, education and health or humanitarian aid, and social protection. Whether NSAGs engage in the provision of legal documentation, and if so, to which degree, impacts civilian access to both the State and other humanitarian actors that provide legal identity through documentation. 

This post shares the findings of a recently published report that was written on the basis of 10-month desk-based open-source research on five case studies: the Central African Republic, Colombia, the post-Soviet space, Sri Lanka, and Syria and Iraq*. It builds on the foundation of 73 unique primary and secondary sources from various disciplines and in different languages (including English, French, Spanish, Arabic, and Russian). This information was complemented with twenty-three semi-structured interviews with actors working on/in the relevant contexts (including humanitarian professionals, academics, civilians and former members of NSAGs). The project sought to understand the arising humanitarian challenges and mitigating circumstances associated with obtaining documentation under the control of NSAGs. The study aims to provide guidance to humanitarian practitioners working on/in such contexts.

Main findings

The case studies analysed in this report highlight the diverse ways in which legal documentation is governed under the control of NSAGs. It is crucial to analyse and respond to humanitarian challenges in context-specific ways. Beyond this, the report reveals the following main findings:

First, the influence of NSAGs on legal documentation (and the related humanitarian challenges) is primarily associated with the strength of the administrative structure before the conflict.

If the administrative infrastructure is not well-functioning, NSAGs’ control over certain areas has a minimal effect on processes of obtaining legal documentation, whereas the report finds NSAGs to be more inclined to appropriate a well-functioning, existing system of documentation. A key example is the Islamic State’s co-opting of the existing documentation procedures of the Syrian State. Before the onset of the civil war, Syrian legal identity was carefully defined via a wide constellation of documents (i.e., the family book and personal ID card), and state registration centres were often accessible locally. As various NSAGs began to occupy territories, many started to appropriate existing structures of documentation and restrict government access within the territories. Often, the procedures and schemes of documentation adopted by NSAGs in these contexts remain relatively similar to the State’s, with the Islamic State as a prime example of an NSAG’s adopting a close approximation of the State’s original documents to function closer to statehood.

A strong administrative structure is also critical to mitigating the humanitarian consequences of lacking documentation, regardless of the involvement of an NSAG. The case of the Central African Republic, wherein the pre-existing system of documentation lacked the capacity and infrastructure to meet the needs of the population, illustrates this clearly. The presence of armed conflict and multiple active armed groups crippled the State’s already overwhelmed administration, with the subsequent lack of access to key documents stemming from the State rather than NSAG activities alone. Although most armed groups understand legal documentation as the State’s responsibility and allow the State to continue providing administration services, the State’s limited capacity could not appropriately fulfill the needs of the population. 

Second, besides direct control (e.g., NSAGs issuing certain documents themselves), the nature of registration under the control of NSAGs can be found in correlation with the extent of coercion that NSAGs exercise over the population.

NSAGs sometimes exercise indirect control over legal documentation, for example, by coercing civilians into obtaining their own documentation. In the case of self-declared Luhansk and Donetsk People’s Republics (LPR and DPR), the authorities issued regulations that made it mandatory for the state employees to obtain passports of the de facto states. 

However, the lesser extent of state coercion does not automatically translate into less coverage of legal documentation but translates into the diversification of sources from which civilians obtain their documents, particularly passports. For instance, in Transnistria, civilians encounter no restrictions should they wish to obtain other citizenship. Many citizens today hold Moldovan, Romanian, and Russian citizenship that entitle them free movement and access to essential social benefits. Humanitarian consequences appear less severe when civilians enjoy more freedom in their decision to obtain documentation, granting them necessary access to social welfare and freedom of international movement.

Third, the relationship between access to legal documentation and civilians’ freedom of movement is mutually reinforcing. 

Civilians’ freedom of movement is oftentimes limited due to a lack of (the right type of) documentation, exemplified in the Syria and Iraq case, where individuals are refused to pass through checkpoints without documents issued by specific entities. On the other hand, limited mobility discourages civilians from obtaining legal documentation from administrative offices that are inaccessible from their residential places. Civilians face extensive obstacles in crossing the contact line if they do not possess the proper documents, are entrapped in remote/isolated villages, or cannot afford the cost of the journey. This is particularly true in the cases of Colombia, Syria, and South Ossetia at the early stage of its de factoindependence.

Fourth, governments are sometimes hesitant to mitigate consequences for civilians living under NSAGs control while the conflict is ongoing, 

This often stems from concerns about the political consequences resulting from the recognition of NSAG-issued documentation. The State’s hesitation around recognising or legitimising NSAG documentation renders the most vulnerable populations living under the exclusive control of NSAGs de facto stateless. For instance, for residents of LPR and DPR who lost their Ukrainian identity documents, it is almost impossible to cross the border to enter Ukrainian government-controlled territories. This presents significant humanitarian challenges should the elderly need to cross the contact line to collect their pensions or new parents need to register their newborns. In addition, politicising the humanitarian aspect of legal documentation could further aggravate its humanitarian consequences, as holders of NSAG documents could be accused of alleged association with the de facto groups. In these cases, the role of humanitarian organisations is even more important. National governments resume a central role in mitigating humanitarian consequences from legal documentation during reconstruction and reconciliation. 

In many cases, States view the presence of NSAG-issued documents as null at best and evidence of treason and collaboration at worst. Even after the conflict, this results in many communities that only had access to non-government documents either de facto stateless or otherwise unable to access basic resources and services, even if that territory has been reclaimed by the State. A particularly troubling tension present in many of the cases studied is the possibility of retaliation against individuals carrying documents issued by certain entities viewed in opposition – a possibility that endures and even accelerates as the conflict ends. 

Conclusion

Ultimately, the humanitarian consequences associated with legal documentation remain a central issue after a conflict ends, requiring immediate action on the part of the State itself and other stakeholders to conceptualise actionable solutions. 

Across all the cases studied, the end of armed conflict or even the disarmament of an NSAG unveils a new constellation of tensions associated with both reconciliation and reconstruction. Violence often leaves local administrative structures damaged and records destroyed, and the recovery of these structures can be further complicated by the lack of State capacity and resources. 

While the path forward in each particular context may be unclear, the findings point to the following recommendations for State governments to mitigate civilian harm: 

  • Universalise access to legal documentation through legal reform. This could vary from increasing the number and coverage of physical registration centers to setting up online registration platforms, depending on the capacity and resources available to the State. 
  • Support reconciliation and mediation to minimise the risk of retaliation for civilians who obtained NSAG-issued documents. This is a critical responsibility of the State following the end of armed conflict, with particular attention needed to distinguish the possession of non-State issued documents and the punishable act of collaboration.
  • Provide essential services (incl. health services, education, and legal services) to those without identity documents. States should also work to provide alternative forms of identification and paths to repatriation for de facto stateless communities.
  • Liaise with humanitarian organisations to facilitate access to services and resources, with a focus on fostering new mechanisms of international cooperation and best practices. These efforts should seek to involve civil society actors and external organisations that can contribute expertise to future dialogue on legal documentation.

Endnotes

  1. Given the research limitation of this study, the report focused on a limited number of NSAGs in each case. A detailed list of NSAGs studied can be found in the original report.
  2. The authors would like to thank Ms. Flavia Keller for her contribution to the original study.
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