About the author(s):
Olivia Herman is a practitioner and researcher in the fields of international law and transitional justice. She holds a PhD in International Law from the KU Leuven (Belgium) and has worked across civil society, academia, and international organisations.
In the fall of 2016, I began the research that underpins my recently published book, ‘Reparations by Non-State Armed Groups under International Law: From Conflict to Repair in Colombia and Beyond’. Right around this time, the Colombian government concluded a peace agreement with the Revolutionary Armed Forces of Colombia – People’s Army (FARC-EP), the country’s largest and longest-standing guerrilla group. This historic agreement marked a major achievement, first and foremost as it ended a long-running armed conflict that had caused widespread suffering within Colombian society. As an international legal scholar researching reparations by non-state armed groups, the agreement was of significant interest to me because the FARC-EP committed to contributing to material and symbolic reparations for the victims of this conflict. The transitional justice process that followed – and continues today – has resulted in the implementation of reparations measures by the FARC-EP that were once unthinkable, including efforts to surrender its wealth for reparations and former FARC-EP leaders publicly apologising to victims for international law violations committed by the armed group.
Although the Colombian case remains an exceptional example to date, the relevance of examining the role of non-state armed groups in providing reparations extends well beyond this context. Non-state armed groups, alongside states, are central players in the majority of today’s armed conflicts, which continue to cause extensive harm and destruction in countries around the world. Unlike wrongdoing states, however, international law is unclear on the questions whether and how non-state armed groups, as collective entities, might be required to provide reparations for their harmful acts committed during situations of non-international armed conflict. Resolving this ambiguity is important for bolstering the accountability framework applicable to non-state armed groups and addressing gaps in victims’ access to justice, remedies, and reparations.
My book provides a comprehensive analysis of these questions from a broad international legal perspective, complemented by practical insights drawn from Colombia’s experiences with reparations by armed groups during two successive transitional justice processes. In this introductory post for the symposium, I will briefly highlight three key points from the book. They set the stage for the comments and reflections in the following posts from three outstanding scholars – Laura Íñigo Álvarez, Nelson Camilo Sánchez León, and Katharine Fortin – whose work influenced the research for my book.
Non-state armed groups’ duty to provide reparation is at an incipient stage in international law
Within the international legal system, the duty to make reparation is a legal consequence of holding an entity responsible for violating its obligations under international law. Therefore, a necessary first step in the book was to determine whether non-state armed groups hold primary international law obligations as direct duty bearers distinct from their individual members. In short, I argue, based on an extensive analysis, that a non-state armed group party to a non-international armed conflict bears certain primary obligations under international humanitarian law and possibly international human rights law as a distinct legal entity.
Although it would appear logical that a non-state armed group would therefore incur international responsibility when violating these primary obligations, my examination demonstrates that this notion remains controversial and results in a problematic responsibility gap in contemporary international law. Within this framework, I conclude that it is particularly unclear whether such responsibility would result in a duty for non-state armed groups to provide reparation. Although this duty primarily arises as a matter of lex ferenda, the book traces some legal precedent and recognition that armed groups should make reparation for their internationally wrongful acts during non-international armed conflicts. As such, I present the view that non-state armed groups’ duty to provide reparation finds itself at an incipient stage in international law.
Multifaceted proposal for operationalising the duty of non-state armed groups to provide reparation within a future responsibility regime
Looking ahead, the book shifts to examining how a duty of reparation for non-state armed groups could be conceptualised and practically applied as part of a future responsibility regime. The law of state responsibility is taken as an initial blueprint, exploring whether the reparation standards from this law can be transposed by analogy to this type of actor. I conclude that the reparation duty of armed groups can be conceptualised similarly to that of states, but that implementation should account for two key concerns, namely (1) states and non-state armed groups may have different organisational capacity to deliver reparations and (2) non-state armed groups may be unable or unwilling to do so. These realities require the application of abstract rules with built-in flexibility to deal with the full spectrum of armed groups, along with a subsidiary mechanism to guarantee redress as much as possible.
Building on existing international law and practice, I develop in the book a proposal for how the duty of non-state armed groups to provide reparation could be practically applied. More specifically, I argue for the adoption of an ‘actor-specific approach’ that considers the organisational capacity of the responsible armed group in the concrete application of its duty of reparation. At the same time, the proposed ‘cascading regime of responsibility for reparation’ comes into play to the extent that the armed group is unable or unwilling to repair the harms caused. Although, in my view, a responsible group should incur the primary duty to repair, the state may need to substitute the group – based on a form of subsidiary responsibility – to ensure the full provision of redress. This can result in a division of responsibility between the group and the state, with a potential supportive role for the international community. The international responsibility of group members can further complement that of the group. In essence, my proposal favours a pragmatic approach that firmly places concerns for accountability and victims at its centre.
Reparations by armed groups in Colombia as insightful cases of practice
In my book, I draw insights from Colombia’s transitional justice processes under the Justice and Peace Law (2005) and the aforementioned peace agreement with the FARC-EP (2016). This analysis is enriched by qualitative in-country research conducted in 2019. The approach adopted in the book allowed me to sharpen my theories on how the duty of non-state armed groups to provide reparation can be operationalised, while also uncovering new perspectives and areas of contention.
The book demonstrates that Colombia’s experiences provide insightful and significant cases of practice. Briefly put, they challenge the traditional understanding that reparations for victims of armed conflict are mainly a subject of state provision. Moreover, the case studies confirm some of the international legal tendencies identified in the preceding legal analysis and support the main arguments developed in the book. For example, the case studies confirm the general tendency in international law towards emphasising the duty of reparation for non-state armed groups with control over territory, and support one of the book’s key arguments that reparations cannot depend on these groups alone. At the same time, the case studies offer new insights and perspectives on reparations by non-state armed groups, including on the question of post-conflict reparations by former members or a successor entity – extensively dealt with in the book – and how new forms of reparations specific to armed groups could be developed.
* My sincere thanks go to editors Ezequiel and Katharine for hosting this book symposium on their blog. In writing my book, I benefited greatly from their excellent scholarly work and guidance – and for that too, I extend my heartfelt appreciation.