Book Symposium “Reparations by Non-State Armed Groups”: A Sui Generis Regime of International Responsibility for NSAGs

About the author(s):

Laura Iñigo Alvarez

Laura Íñigo Álvarez is an Assistant Professor in International Law at NOVA School of Law in Lisbon. She is also the co-coordinator of the recently created NOVA War and Law Lab and the scientific coordinator of the NOVA Centre on Business, Human Rights and the Environment. Her main research interests are international human rights law, international humanitarian law and armed non-state actors, international criminal law, and business and human rights.

The question of whether non-state armed groups (NSAGs) could be held internationally responsible has been a recurrent theme of discussion during the last decades (see herehere and here), although it still remains contested. In her book Reparation by Non-State Armed Groups under International Law, Olivia Herman brightly addresses this and other relevant topics in relation to the provision of reparation by NSAGs with a particular focus on the conflict in Colombia. 

In this post, I will address the issue of the possible legal regimes of responsibility that could be applicable to NSAGs and the proposal of a sui generis regime of international responsibility of NSAGs made by Herman. Responsibility under international law could be seen from the lens of state responsibility for internationally wrongful acts (and the parallel responsibility of international organisations) or from the point of view of individual criminally responsibility. This does not mean that other forms of accountability are also possible through, for instance, commissions of inquiry and fact-finding missions, transitional justice mechanisms or other domestic judicial and non-judicial mechanisms. However, legally speaking we need to tackle the main regimes of responsibility under international law. 

The relevance of the State responsibility for internationally wrongful acts

In Chapter 3, Herman examines whether the regime of state responsibility under the ILC Articles on Responsibility of States for Internationally Wrongful Acts (ASR) covers the actions of NSAGs and if so, whether we could propose an analogous regime for NSAGs based on similar rules, something that I also discussed here. Although the ASR focus mainly on the responsibility and the conduct of states, there is one exception included in Art. 10 ASR which relates to an insurrectional or other movement which becomes the new Government of a State or succeeds in establishing a new State in the pre-existing territory. 

In this regard, on a first look Art. 10 could be seen as filling this gap of international responsibility for the conduct of rebel and insurrectional movements since the conduct of those groups carried out during the armed conflict would be then attributed to the new Government or to the new State created. However, as Herman rightly points out, this article does not comprehensively cover all the possible scenarios. In particular, she mentions that the article would not be applicable in the case of a government of national reconciliationestablished by an agreement between the existing authorities and the leaders of the insurrectional movement (as explained in the commentary to the article); the rules mentioned are in fact rules of attribution rather than rules of responsibility; the article would probably not be used when a non-international armed conflict is still ongoing; it is limited to the cases where those groups succeed in forming a new Government or creating a new State but not when they are unsuccessful; and additionally the article is not based on sufficient state practice (see Chapter 3, section 3.2.1.1). I would also add another reason regarding the limitation of this article to comprehensively cover the responsibility gap of NSAGs and it has to do with the fact that not all armed groups would have the aim of forming a new Government or State. It is possible that some armed groups would simply want a better redistribution of wealth, more levels of autonomy, or do not even have political goals. Currently, a relevant topic of discussion is whether criminal organisations such as gangs or drug cartels could be considered as parties to a non-international armed conflict, even though they do not have political objectives but mainly economic ones (for instance, see here).

In any case, the commentary to Art. 10 leaves open the possibility that “the insurrectional movement may itself be held responsible for its own conduct under international law, for example for a breach of international humanitarian law committed by its forces” so implicitly, the ASR recognise the fact that NSAGs could be held internationally responsible even if they are unsuccessful. 

Individual criminal responsibility and its limitations to cover NSAGs’ actions

As regards the possibility of applying individual criminal responsibility to the conduct of NSAGs, one needs to consider whether this regime would sufficiently cover the actions of NSAGs. In this regard, Herman affirms that “the international community has concentrated its efforts on criminalising the acts of individuals during times of NIAC, while largely ignoring the responsibility of the group as the broader collectivity in which the individual authors of these crimes are embedded” (Chapter 3, section 3.3.1). Indeed, it is of essential importance to understand the context in which international crimes are committed and the fact that the commission of certain international crimes requires the existence of a collective action. That is why individual criminal responsibility is also insufficient in addressing violations of international law committed by NSAGs. Firstly, it only covers the actions (or omissions) of individuals or natural persons and secondly, it refers exclusively to the most serious violations of international humanitarian law and international human rights law, and consequently, many actions would be unaddressed. 

Therefore, due to the limitations of individual criminal responsibility, Herman proposes two possible paths: extending criminal liability to NSAGs as “legal entities” and establishing a regime of collective criminal responsibility; or alternatively, complementing individual criminal responsibility with another regime of responsibility that is not criminal in character (Chapter 3, section 3.3.1). As for the possibility of establishing a regime of collective criminal responsibility, we need to remind that this endeavour was already proposed during the drafting process of the Rome Statute of the International Criminal Court in relation to companies, political parties and even racist groups (see Clapham). However, this could result in the criminalisation of mere passive membership in an organisation, which is against core principles of criminal law. Moreover, another difficulty would be how to prove the mens rea or mental element of the crime in relation to the actions of legal entities or organisations. The current debates regarding collective criminal responsibility seem to have focused on the conduct of companies as possible legal entities to be held criminally responsible (see here and here) since they are recognised entities under domestic law and there is no such controversy as to questions of legitimacy, differently from what happens with the discussion about NSAGs. 

Towards a sui generis regime of responsibility for NSAGs

Taking into consideration the limitations of the existing regimes of international responsibility to comprehensively cover NSAGs’ actions and with a view to fill the impunity gap, Herman suggests having complementary regimes: keeping individual criminal responsibility for individual members of NSAGs and adding another layer of responsibility that focuses on the group itself (Chapter 3, section 3.4). For a regime that tackles the group as such, her main proposal is to depart from the state responsibility rules by applying analogical legal reasoning and introducing the necessary adjustments that consider the differences between states and NSAGs. In this regard, the rules of state responsibility can be considered as sui generis because they are not criminal nor civil in nature (although they resemble the rules of extracontractual civil responsibility or tort law). I believe this is a well-founded and reasonable proposal, in fact I suggested a similar understanding here. The main advantage of using the state responsibility rules as a departing point is to keep the coherence of the system of international law, or in other words, all entities with (limited) legal personality under international law should be held responsible based on analogous rules. At the same time, having complementary responsibility regimes would serve different purposes: individual criminal responsibility aims to combat impunity and punish the perpetrators of such violations, while state or collective responsibility would tackle the need to restore the international order to its status quo and repair the damage caused. 

(Visited 53 times, 1 visits today)

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: