About the author(s):
Katharine Fortin is an Associate Professor at Utrecht University where she teaches IHL and IHRL. Before joining Utrecht University, she worked at the ICTY, ICC and Norton Rose Fulbright. She is the author of The Accountability of Armed Groups under Human Rights Law (Oxford University Press, 2017) which won the 2018 Lieber Prize. She has written widely about the framework of law that applies to armed groups in non-international armed conflicts and is one of the editors of the Armed Groups and International Law blog.
This book is an outstanding addition to the field of scholarship on armed groups and international law. It addresses whether and how non-state armed groups (NSAG) might be required to provide reparation for the damages, or harms, caused by their violations of international law committed during situations of non-international armed conflict (NIAC). Herman addresses this question (which she rightly identifies as ‘delicate’) in four steps parts. First she seeks to establish whether NSAGs have legal personality under international law. Second she considers whether a duty on the part of NSAGs to provide reparation exists under international law and if so, to what extent. Third she examines how such a duty of NSAGs to provide reparation might be operationalised under international law. Finally, she considers what insights for international law can be drawn from the operationalisation of a duty of NSAGs to provide reparation in Colombia.
In this blog post, I will summarise what I perceive to be the main strengths of the book. I then zoom in to look more closely at the arguments that Herman makes regarding a proposed cascading regime of responsibility, pointing out what I find interesting and where I would have liked a few more details. I will then discuss how she goes on to test, analyse and operationalize this proposal via her two case studies on Colombia: the Justice and Peace Law process relating to the United Self-Defence Forces of Colombia (AUC) and the Comprehensive System for Truth, Justice, Reparation and Non-Repetition relating to the Fuerzas Armadas Revolucionarias de Colombia-Ejército del Pueblo (FARC-EP).
Strengths of the book
Herman’s book adds to the scholarship on armed groups and reparations in several different ways and I hope that it is widely read. The probing manner in which she identifies and tackles the more complex parts of the debate is impressive. She does not shy away from the different legal, political and logistical challenges that are raised by the ‘delicate’ nature of her enquiry and continually digs deeper to tie up loose threads that many other authors might be tempted to ignore. It is in the character of the book’s thoroughness, that Olivia employs such a varied toolbox of resources and methods to propose solutions to these challenges, basing her insights on legal doctrinal analysis, a review of case law from different jurisdictions, historical analysis, social science literature and two detailed Colombian case studies.
Olivia’s book adds to the rich and growing body of general scholarship on armed groups and international law. In particular it adds to existing studies on the legal obligations of armed groups under IHL and IHRL (e.g. Sassoli, Clapham, Murray, Fortin, Rodenhäuser), historical studies (e.g. Mantilla, van Dijk, Greenman), studies on the ability of armed groups to bear responsibility under international law (Iñigo Álvarez), their legal personality (e.g. Clapham, Fortin, Murray, Heffes), their duty to provide reparations (e.g. Moffett, Dudai, McEvoy, Lawther & Moffett) and their practice of apologies (e.g. McEvoy). It is noted that the topic of the role and responsibilities of non-State actors in transitional justice processes was the subject of the report of the UN Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence in 2022. I find it a quality of the book that whenever Olivia travels ground that has been explored already by other authors, she carefully builds on existing research by taking care to not only acknowledge prior work but also add new research, thoughts, insights or critiques. The two case studies are particularly well chosen, providing operational details that are highly complementary to the early parts of her thesis and allow her to test and refine the theories already proposed and identify points of contradiction or contestation for further thought. In the case studies, she combines a review of the law with key informant interviews that bring many interesting perspectives to light.
Cascading regime of responsibility
Several legal arguments and enquiries stand out as being particularly interesting and insightful. The first is the analysis in Chapter 4 on the operationalization of a duty for non-state armed groups to provide reparation. Acknowledging that in an ideal world, the armed group itself would bear the duty to provide reparation, Herman puts forward a proposed cascading regime of responsibility for the instances when this is not possible, either because the armed group lacks capacity, is unwilling or ceases to exist at the moment at which reparations are due.
Under Herman’s proposed framework which is in part based on a review of the Articles on the Responsibility of International Organisations and the UN Basic Principles and Guidelines, the responsibility would primarily rest on the group but would (or could) be complemented by the responsibility of individual group members, the territorial State and the international community. This presents a practical and straightforward solution to a problem that has long troubled authors writing on armed groups and international law, namely; what happens with regard to an armed group’s violations, when/ if the armed group doesn’t exist anymore at the end of an armed conflict? But one important detail that is missing in this section is who or what entity/ institution will be doing the actor-specific assessment that is proposed? The use of the passive tense throughout makes Herman’s thoughts on this important question rather unclear.
I would have also liked a few more details on the legal basis of the involvement of actors other than the armed group i.e. armed group members/ State. Olivia talks about the State taking on a subsidiary role, if the armed group is unwilling or unable to provide reparations citing inter alia Article 16 of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. It seems clear that under this construction, the State is providing reparation for the wrong itself (rather than, for example, its failure to protect civilians under human rights law). I am left wondering about the legal foundation of Article 16? I would be curious to hear a bit more about the legal rationalization of this transfer of primary responsibility.
I also find myself interested to hear a bit more about Herman’s thoughts on the point in time at which we should understand an armed group’s legal personality to be extinguished. This point may seem a bit formalistic considering the very detailed way in which Herman in fact considers whether and how a NSAG may be able to fulfil its duty to provide reparations when it legally ceases to exist. Her analysis here is quite extensive on this point, which is great because it is particularly important and little addressed. She includes a discussion of instances in which the assets of defunct NSAGs have been acquired (i.e. Sri Lanka), a discussion of the Omagh bombing case that considered the legal personality of the real IRA under domestic law and the representative authority approach. Yet still I find myself wanting to hear Herman’s thoughts on the end of a NIAC, a point in time which is referenced many times without an acknowledgment the legal underpinnings determining this moment are largely unresolved. I would also be curious to hear Herman’s thoughts on a slightly different question, namely whether it is possible for the legal personality of an armed group to change shape (from international to domestic) so that it extends beyond the end of an NIAC. This might feasibly happen in situations where an armed group demobilizes and transforms into a political party at the end of the armed conflict. In practical terms, the groups de facto continuing legal personality might then be a basis to argue that the obligations of the international entity remain relevant. Herman relates almost in passing that the High Court of Justice of Northern Ireland found the Real IRA was only an unincorporated association, and therefore could not be rendered a defendant in its own right. But is that likely to be always the case? And are there any other cases where an armed group that used to be party to an NIAC has been found to have domestic legal personality (either during or after the conflict)?
Operationalising and testing proposals through fieldwork
In the last two chapters, which focus on the United Self-Defence Forces of Colombia (AUC) and FARC-EP in Colombia, Herman tests the cascading regime of responsibility that she proposes in the earlier chapters. Herman’s analysis of the reparation schemes that flowed from the Justice and Peace Law of 2005 is very insightful. She shows how in 2006, the Colombia Constitutional Court proposed a similar cascading responsibility scheme in relation to the AUC. Herman explains how the Court held that not only those who were held criminally responsible should provide compensation to victims from their personal assets, but also recognized that the NSAGs themselves should bear a subsidiary responsibility. She shows how according to the court, the group’s subsidiary responsibility would only be triggered when the assets of the NSAG member were not sufficient to cover the compensation order. The Constitutional Court also considered whether the Colombian state should play a role in safeguarding victims’ rights in situations where the compensation order could not otherwise be covered. It found that it would be generally inappropriate for the State to pay for the wrongs committed by an NSAG, because then the reparative burden would be transferred to the Colombian citizens. Bearing this in mind, it found that the State should only pay when the convicted person or the NSAG failed to fulfil their obligations.
When stepping back and analysing the Justice and Peace Law of 2005, Herman notes that the cascading scheme proposed by the court does not entirely match the cascading scheme that she proposes earlier in the book. While the AUC scheme went ‘Individual-NSAG-State’, the scheme Herman proposed earlier in her book goes ‘NSAG-Individual-State’. Noting this difference, Herman points out that both approaches still depart from the same argument, namely that the actor responsible for harms should bear the principal duty to provide reparation. She also notes that in both cases, the territorial State takes on the role of providing a ‘final safety net’ in accordance with its duty to guarantee human rights. It is hard to discern whether Herman prefers one order over the other (i.e. Individual-NSAG-State or NSAG-Individual-State?). It seems she takes the view that it will depend on the primary goal of the initiative. If the goal – like that of her monograph – is to establish reparations by non State armed groups under international law, then her own proposal makes most sense.
The later FARC-EP case study complements her work on the Peace and Justice law and the AUC, because it contains some parallels and some differences. The relevance of the FARC-EP case study is – as she argues – that it is a recent and prominent example of state practice recognizing a duty to repair for a NSAG as a matter of international law. In studying the peace negotiations, she shows how the NSAG’s duty was understood and legally conceptualized by both the Colombian government and the FARC-EP. She shows how it emerged from quite a simple understanding by both sides that the parties who were responsible for violations of international law, should be under a duty of reparation. She also shows that the Final Peace Agreement provided that the state would play a subsidiary role in guaranteeing the right to reparation of victims. In that sense, she notes that this case supports also her argument in Chapter 4 that reparations “cannot depend solely on an NSAG, even if it is highly organized and wealthy, as was the FARC-EP” (p220). The facts seem to bear this out, but the reader is left wondering why exactly this should be the case? Granted, it seems sensible to formally nominate the State as a safety net in case the money runs out elsewhere, but is it really the case – as Herman suggests – that an armed group could never provide full reparations? And if so, why? I’d be interested to hear more on this point.
Conclusions
It is to Herman’s credit that the conclusions drawn by the book on the law and insights drawn from the case studies acknowledge the need to be cautious both on the state of the law and the transferability of her conclusions from the case studies. In my mind, the book adds operational details and colour that have previously been missing in the conceptualization of this topic e.g. the organization of armed groups, the timing of reparations processes, the manner in which efforts to hold armed groups responsible should complement (international) criminal law processes and State responsibility, the cascading model. The book also provides valuable insights into the different ways in which such processes may be seen by the State, recipient communities and the armed groups members themselves.