About the author(s):
Ezequiel Heffes' research focuses on international law and non-State actors. He was the Director of Watchlist on Children and Armed Conflict in New York. Ezequiel also worked for Geneva Call as a Senior Policy and Legal Advisor and for the ICRC in various operational positions in Colombia, Afghanistan and the Democratic Republic of the Congo. He holds a PhD from the University of Leiden, an LLM in IHL and Human Rights from the Geneva Academy, and a law degree from the University of Buenos Aires School of Law. He has widely published on different international law issues. Ezequiel is the author of Detention by Non-State Armed Groups under International Law (Cambridge University Press, 2022) and the co-editor of International Humanitarian Law and Non-State Actors. Debates, Law and Practice (Springer/Asser Press, 2020) and of Armed Groups and International Law. In the Shadowland of Legality and Illegality (Edward Elgar, 2023).
I. Introduction
In June 2024, the Trial Chamber of the International Criminal Court (ICC) delivered the Al Hassan decision, sparking discussions within the international legal scene. Some attention has indeed been given to the Chamber’s approach to the intensity required for a non-international armed conflict (NIAC) to exist (see here and here). The decision offers various interesting legal insights that tackle questions of law and policy. In this post, I reflect on a critical issue raised in the judgment that has not received much attention in recent debates related to the case: the possible application of international human rights law (IHRL) to non-State armed groups (NSAGs) and the approach the Trial Chamber offered with respect to the definition of nexus in NIACs.
II. Nexus to the Conflict in Al Hassan
In the context of this symposium, Katharine Fortin correctly noted back in July 2023 that the Trial Chamber had to “address the proper application of the nexus test in the territory under the control of NSAGs”. This test, according to the ICTY, “serves to distinguish war crimes from purely domestic crimes and also prevents purely random or isolated criminal occurrences from being characterized as war crimes” (para. 293). In the Kunara? Appeals Judgment, the Tribunal identified that “[t]he existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit [the crime], his decision to commit [the crime], the manner in which it was committed or the purpose for which it was committed’ (para 58). It also offered a number of factors that, inter alia, could serve to differentiate whether a situation is regulated under IHL or a different framework: (i) that the perpetrator is a combatant; (ii) that the victim is a “non-combatant”; (iii) that the victim is a member of the opposing party; (iv) that the act may be said to serve the ultimate goal of a military campaign; and (v) that the crime is committed “as part of or in the context of the perpetrator’s official duties” (para 59).
Considering these elements, the defence of Al Hassan argued that the prosecution had not established the existence of a nexus between an armed conflict and the alleged war crimes. In particular, it affirmed that the Prosecution “had not pleaded or established that the physical perpetrators were combatants”, that the “physical perpetrators were aware of the ‘existence of fighting of a certain level of intensity between at least two organised entities”, that the “alleged victims were not military opponents or associated with military opponents”, and that they were not “arrested, detained, or punished for reasons associated with an armed conflict”. Furthermore, it claimed that members of NSAGs, including AQIM, “married members of the local population before the outbreak of any hostilities”, and the Prosecution was not able to present any evidence suggesting that AQIM “changed its modus operandi concerning the negotiation or execution of any marriages” (para 120). The defence, importantly, noted that due to the absence of Malian authorities in Timbuktu, Ansar Dine and AQIM “took steps to fill the governance gap at the request and with the assistance of the local population”, which is “not sufficient to trigger the nexus threshold” (para 121). Otherwise, the defence argued, “IHL would capture actions of the Islamic Police and of locals who worked” at certain institutions, such as the hospital and the Crisis Committee (para 121). This perspective would “result in the inclusion of such persons as participants in hostilities”, which, according to the defence, would be “inconsistent” with IHL, as this legal framework “specifies that policing activities during an occupation are ‘neutral’ and are not linked to the armed conflict” (para 121). As a result, the defence concluded that the “policing” activities would be regulated “through human rights norms rather than IHL or ICL” (para 125).
As expected, the Trial Chamber addressed these arguments, but it only offered a limited (and a somehow confusing) elaboration of its arguments. It claimed that, since it had found that a NIAC existed in Mali at least from April 2012 to January 2013, with Ansar Dine/AQIM being one of the parties, IHL “formally applied throughout this entire period of time on the territory under control of the parties to the conflict” (para 1271). Moreover, although it acknowledged that the NSAG had displaced the Malian government and exercised “government-like functions”, these were governed by IHL (para 1271). As a result, it found that any acts committed by members of Ansar Dine/AQIM against individuals under their control qualified as war crimes (para 1275). This seems to follow the ICRC, that has stated that given that the armed conflict plays a substantial part in a NSAG’s ability to control the lives of those living under its control, IHL applies and protects these individuals (p. 53).
III. International Human Rights Law and Non-State Armed Groups in Al Hassan
Interestingly, the Chamber took an additional step by considering the possible application of IHRL to NSAGs without explicitly rejecting this view. This analysis is not included in the main text of the decision but rather confined to a footnote (4079), which reads as follows:
Accordingly, the Chamber rejects the Defence’s blanket statement that any action undertaken by a member of a police force, during a conflict, must be considered as ‘neutral’ and pertaining to the ‘civilian domain’ and falls automatically under international human rights law only. Leaving aside whether non-state armed groups such as Ansar Dine/AQIM can be bound by international human rights law, the Defence’s argument misrepresents the relationship between international human rights law and international humanitarian law in times of armed conflict. Given that the alleged conducts do not concern situations of actual conduct of hostilities, there is no reason why international humanitarian law and international human rights law cannot apply at the same time.
While I agree with the Trial Chamber (and the ICRC) that IHL applies in territories controlled by NSAGs – serving to regulate, prevent, and restrict their conduct – the question of how IHRL and IHL can apply “at the same time” in such scenarios remains unresolved. For instance, it is uncertain whether certain “governance-like” functions undertaken by NSAGs might fall under the scope of IHRL or how matters not addressed by IHL in context of “rebel governance” would be handled. Although the Trial Chamber deliberately decided not to address whether NSAGs can be bound by IHRL, its decision to leave this possibility open warrants further examination. This is in particular because it is well-known that IHL in NIACs does not regulate many aspects of the activities taking place in territories controlled by NSAGs, such as “the provision of public order and safety, the possible collection of taxes, or the adoption of laws regulating life in such territory” (pp. 53, see also here and here, pp. 85-90). As the ICRC has put it, IHL “tends to be less elaborate, or silent, on the protection of certain” rights, such as “the political, economic, social, and cultural rights of the population” (pp. 53-54).
Different international institutions have, in fact, recognized the application of IHRL to NSAGs, although in varying degrees. For instance, the ICRC has stated that “armed groups that exercise territorial control and fulfil government-like functions […] incur responsibilities under human rights law” (para 517). In 2021, UN human rights experts with monitoring mandates published a joint statement affirming that “at a minimum, armed non-State actors exercising either government-like functions or de facto control over territory and population must respect and protect the human rights of individuals and groups”. In 2018, the Special Rapporteur on extrajudicial, summary or arbitrary executions released a report focused exclusively on armed non-State actors and the protection of the right to life, where she showed that these entities “can be accommodated as subjects of” IHRL, without treating them akin to States (p. 19). In her words, NSAGs would not be bound “by the full range of human rights laws but to a threshold of norms derived from the nature of their control and degree of organization, or capacity” (p. 19).
IV. Concluding Reflections
When dealing with States, it is widely acknowledged that issues affecting everyday lives of individuals with no nexus to the conflict fall outside the scope of IHL, and are governed by other bodies of law, including IHRL. States involved in NIACs may have part of their territories unaffected by the conflicts, resulting in interactions between governmental authorities and individuals with no connection to the hostilities. As I have put it elsewhere,
if the national Colombian police arrests an individual for the act of looting a supermarket in Bogotá, it would be difficult to contend that the detainee is protected under the legal framework of IHL. If the same individual fires on government authorities while trying to evade arrest, the same logic would hold. No one could claim that he or she would have to respect IHL rules on the conduct of hostilities, as would be the case in the context of an armed conflict (p. 91).
The Trial Chamber had the opportunity to respond whether a similar argument could be advanced for the governance-related activities taking place in NSAGs’ controlled territories. Although this is an issue that has gained attention in the past few years, the Chamber simply decided to note that IHL applied to the territory in question. And it did so without further assessing specific activities or acts, thus missing the opportunity to provide clarity as to the protection of individuals affected by the behaviors of Ansar Dine/AQIM. Given that in December 2024, the defence and prosecution decided not to appeal the sentence, it remains to be seen if future cases before international criminal tribunals will have to deal with this matter, and the view they take.
This piece is written in the author’s personal capacity and in no way represents the views of any institution or the defense in the Al Hassan case, for which the author served as an expert.