Organizing Rebellion Symposium: Four Points to Conceptualize Armed Groups under International Law

[Tilman Rodenhäuser holds a PhD from the Graduate Institute of International and Development Studies in Geneva. He is currently Legal Adviser at the International Committee of the Red Cross (ICRC), and worked previously with the German Red Cross, DCAF, and Geneva Call. The views expressed on this blog are those of the author alone and do not engage the ICRC, or previous employers, in any form. This post is the first in our joint symposium with Armed Groups and International Law.]

Looking at armed groups in the conflicts and crises of the past decade, the picture we see is increasingly messy. On the one extreme, there is a multiplication of groups. Researchers say that more armed groups have emerged in the last six years than in the previous six decades. For instance, McQuinn reports that during the conflict in Libya in 2011, 236 different ‘revolutionary brigades’ operated in the city of Misrata alone. In Syria, the Carter Center estimated that over the first 2.5 years of the crisis, ‘approximately 4,390 armed units and military councils’ operated in the country. Armed groups form alliances, merge into one group, or splinter – at times within the territory of one State, at times across borders. On the other extreme, in places such Yemen, Syria, Iraq, Libya, and Ukraine, groups consolidate power in ways effectively resembling States, exercising stable control over territory and population.

For military lawyers, humanitarian organizations, human rights lawyers, or prosecutors at national and international tribunals, this increasingly complex reality makes it difficult to answer elementary legal question: when is an armed group sufficiently organized to qualify as a party to an armed conflict? Do armed groups have human rights obligations? If yes, which ones? And can armed groups instigate crimes against humanity or genocide?

A comprehensive analysis of these questions is found in my book ‘Organizing Rebellion: Non-State Armed Groups under International Humanitarian Law, Human Rights Law, and International Criminal Law’, recently published with Oxford University Press. As a way of introducing this symposium, I will set out  the four key takeaways from the book.

1. International law does not provide a ‘one-size-fits-all’ analysis or framework for armed groups

International law does not provide one single definition or framework for non-state armed groups to be an ‘international legal person’ vested with a fixed set of international obligations. If we want to know whether a group is a party to an armed conflict governed by international humanitarian law (IHL), bears human rights obligations, or if its members can be criminally responsible for certain international crimes committed on behalf of the group, we have to examine the group in light of the body of law we are looking at. Having obligations under one field of international law, or being able to commit one type of international crime, does not necessarily mean that a group will also bear obligations in another field of law. Concretely, while an armed group may become party to an armed conflict, bound by IHL, and its members liable for war crimes, it is a completely different question whether the same group is also obliged to respect, protect and fulfil human rights in territory under its control. Likewise, a group able to draw up and implement an ‘organizational policy’ behind crimes against humanity may not necessarily be sufficiently organized to become a party to an armed conflict.  

2. Three criteria define whether an armed group is sufficiently organized to become party to an armed conflict

When protest or violence escalate – as was repeatedly the case in the Middle East and parts of Africa in recent years – lawyers have to determine when such violence amounts to an armed conflict. Under contemporary IHL, two criteria determine the existence of a non-international armed conflict under article 3 common to the four Geneva Conventions and customary IHL: there needs to be sufficiently intense violence between sufficiently organized parties. In my book, I examined the second of these criteria, and identified three basic criteria to determine whether a group meets the organization criterion under IHL. These criteria apply irrespective of whether the group is a traditional liberation movement, a group labelled ‘terrorist’, a coalition of groups that merges into one armed group, a group operating in cyber space (Organizing Rebellion, pp 104-108), or a group operating across national borders (Organizing Rebellion, pp 96-104).

• First, the group needs to be a collective entity. In my view, what turns a loose network of individuals into a legally relevant collective entity is a vertical or horizontal command structure. This criterion appears very simple, but especially if we look at alliances of armed groups it is often difficult to establish.
• Second, the group needs to have the capacity to engage in sufficiently intense violence, which requires manpower, logistics, and the ability to coordinate operations.
• And third, any party to an armed conflict needs sufficiently developed command or disciplinary structures to implement at least basic humanitarian obligations. This does not mean that the group respects IHL in practice; however, the group would need to have the ability to respect fundamental humanitarian norms.

3. Possible (future?) human rights law obligations depend on the group’s capacity and the circumstances it operates in

If an armed group establishes quasi-governmental structures in a defined territory, who is responsible for protecting and fulfilling the rights of those living under the armed group? As today’s international human rights treaty system is focused on State obligations, in too many contexts the sole focus on States as duty bearers leaves the human rights of thousands, if not millions, unprotected. In the book, I do not aim to draw a clear conclusion on whether armed groups are legally bound by human rights law. Instead, I present contemporary practice and examine a variety of legal questions that arise.

Different scholars have suggested that possible human rights obligations of armed groups are best understood as existing on a spectrum. In my view, on this spectrum obligations should depend on the circumstances in which the group operates and the group’s capacity. Based on this assumption, the book examines possible obligations of three broad categories of armed groups: (1) groups exercise quasi-governmental authority in defined territory – such as the Hamas in Gaza or the Islamic State in parts of Iraq and Syria; (2) groups exercising de facto control over territory and people, ranging from different groups in the Democratic Republic of the Congo to smaller groups in Libya or Yemen, and (3) armed groups without territorial control, which are particularly relevant when operating in failed states and outside armed conflicts.

4. International criminal law can address crimes committed by various armed groups

Most crimes currently being prosecuted before the International Criminal Court have been committed by members of armed groups. Under international criminal law, an essential preliminary question with regard to these crimes is at what point the involvement of the armed group satisfies the collective entity involvement criterion as required for most crimes. The type of armed group that can be involved in an international crime cannot, however, be determined in the abstract. It depends on the definition of the crime.

With regard to war crimes, for example, the degree of organization of the armed group involved is similar to the organization threshold defined in IHL. Unless there is an armed conflict, there cannot be a war crime.

The issue presents itself differently with regard to crimes against humanity. In the Rome Statute, crimes against humanity are defined as certain acts committed as part of a widespread or systematic attack against any civilian population, and such attack must be – among other things – ‘pursuant to or in furtherance of a State or organizational policy’ (article 7(1)(a)). I argue that determining what constitutes an organization behind a crime against humanity depends essentially on the relationship between the organizational policy behind the attack and the underlying acts. In short, there are three ways in which a collective non-State entity may be involved in a crime against humanity:

• First, the collective entity could encourage the attack against a civilian population merely by deliberately abstaining from action. This exceptional case may only be pertinent, however, if the collective entity is otherwise obliged and able to protect the targeted population (arguably, if it has State-like capacities).
• Second, an armed group could ‘actively promote or encourage’ the attack without being directly involved in the commission of the underlying criminal acts. In that case, the underlying criminal acts (i.e. torture, rape, murder, etc.) would not necessarily be committed by members of the group.
• Third, and this is the most common case in practice, the entity behind the organizational policy also implements the attack against a civilian population by organising and directing the underlying crimes, normally committed by members of the group.

5. You want to know more? Follow the symposium and read the book!

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I am truly honoured and grateful to all experts taking part in this blog symposium. I have read your work when writing the book, engaged with your arguments, and learned from you; you are among the scholars I admire most in your respective disciplines. I look forward to reading your views.

I am especially grateful to Katharine & Ezequiel from Armed Groups and International Law, and Jessica from Opinio Juris, for organizing this symposium. Merci beaucoup!