Symposium: Combatancy and Post-Conflict Reconciliation in Internationalized NIACs – A Call for Further Discussion

I want to congratulate Professor Macak for a fantastic book. Not only does it make for a very enjoyable read, I was also very pleased with its thoroughness, including in terms of incorporating the practice of the Global South. Take, for example, the case of recognition of belligerence. It is, as the book points out, very common to hear how this institution is in full desuetude since at least before World War II. Latin American practice with regard to recognition of belligerence in the 1970s and beyond is thus frequently ignored, but not by Professor Macak; and in this day and age, that is something I sincerely value.

There are, however, a few aspects I would like to discuss further, especially with regard to Part II, Chapter 6 of the book, dealing with the regulation of the combatant’s privilege in internationalized armed conflicts. While I agree with Professor Macak’s overall conclusion that, as a general rule, the principle of equality of belligerents mandates the granting of combatancy to non-state fighters in an internationalized NIAC, I do find room for additional discussion with regards to the “countervailing reason[s]” he analyses.

The mainstream argument regarding the granting of combatancy in NIACS is that it makes sense to allow the government to prosecute the members of a non-state armed group as a way to weaken its enemy. Professor Macak disagrees. In his view, the argument is commonly unpersuasive, considering nowadays states tend to refrain from prosecuting enemy fighters at the end of hostilities, rather choosing amnesty as a better alternative, particularly in the case of prosecution for mere membership. Professor Macak finds support for this proposition in the studies by Emily Crawford and Andrew Reiter, et.al. and concludes that this trend is a “convincing counterargument” to the prosecution objection. In his own words:

“The fact that in actual practice, states often do not make use of their criminal justice system to deal with the persons who had opposed them in armed struggle, is a tacit yet critical pronouncement on the efficacy of such measures. It is submitted that the authorities in power realize that to use the judicial branch to punish mere participation would often result in further backlash among the general population and that it might undermine national reconciliation. From this perspective, the usefulness of prosecution thus appears limited at best and certainly not guaranteed in each conflict”.

In sum, the need for prosecution would not be a good argument against granting immunity to non-state fighters in an internationalized NIAC because, chances are, the state will end up amnestying them once the conflict ends anyway. I fear I find this argument too general to agree with it. Rather, I believe there may be more to discuss regarding the effect of immunity in internationalized armed conflicts, particularly in the post-conflict reconciliation stage.

The dynamic of internal conflict is markedly different from that of a traditional inter-state war. Unlike the latter, in the former, supporters and members of each party to the conflict need to find a way to coexist within the same community and rebuild a nation. This is not an easy feat, and results vary from conflict to conflict, which means that post-conflict strategies will also vary greatly. This is something that Reiter et.al. acknowledge in their study, concluding that amnesties are in fact “the most common mechanism used during and after conflict”, but that:

“Countries experiencing high levels of battle deaths and protracted wars tended to adopt accountability measures. Such cases likely produce the necessary moral outrage to heighten pressure for trials. War fatigue may also explain the desire to punish those engaged in violence and to deter future violations”.

This element of war fatigue in high-violence conflicts should not be underestimated. While post-conflict amnesties may well work for several – even the majority – of conflicts, this should not lead us to conclude that, in general, immunity through internationalization would be generally costless or that prosecution “might undermine national reconciliation”. In high-violence conflicts, prosecution may actually be an important component to this reconciliation.

Take, for example, the case of my own country, Peru. Peru was engaged in a NIAC against the Shining Path for almost two decades. It was a bloody conflict with approximately 69,000 estimated deaths. According to Peru’s Truth & Reconciliation Commission, the conflict was the result of “the decision of the Peruvian Communist Party – Shining Path (PCP-SL) to launch a so-called ‘popular war’ against the State [and] against the interests of the immense majority of Peruvians” (all translations my own). According to the Truth Commission, its research “clearly shows that PCP-SL was the main perpetrator of crimes and human rights violations” and that “PCP-SL represents the expression of a fundamentalist ideology with no regard to life”.

The Shining Path was a particularly bloody and violent group. In one especially gruesome incident, Shining Path members singled out all the males of an indigenous Andean community, and forced women and children to watch as their husbands and fathers were hacked down with machetes and pick-axes. Then, they sprayed kerosene on the women, who were saved from certain death at last minute by a child who tricked the attackers into believing that a military patrol was heading to the town. Situations such as this one break social bonds in ways that are difficult to reconstruct. These communities remain traumatized by these horrendous crimes and Peruvian society as a whole has little understanding for individual voluntary membership in the Shining Path. Last year, more some 20 years after the end of hostilities, 90% of Peruvians still considered the Shining Path a serious or moderate threat to the country and 89% opposed granting a pardon – even for humanitarian reasons – to Shining Path leader, Abimael Guzmán.

Some time ago, I wrote about the problems of perception in the prosecution of heinous crimes in post-conflict societies. A version of this analysis is also applicable here. A majority of Peruvians would not be willing to accept an outcome where domestic crimes, such as the killing of members of the armed forces or self-defence committees (militias composed of indigenous peoples that fought against the Shining Path in isolated Andean regions) would not be prosecutable. A general amnesty for domestic crimes – including the crime of “membership in a terrorist organization” – would have rather made reconciliation more difficult, not easier. In the words of the Peruvian Truth Commission:

“The real political solution to the conflict is not the one that proposes a ‘political amnesty’ of the inmates that participated in the conflict. As long as PCP-SL does not make a public acknowledgment of its renunciation of violence as a means of its political activity, it is manifesting that its policy of reconciliation is not based in the interest of society and the nation, but that continues to be anchored in its interests as a group, temporarily camouflaging its true criminal strategy. (…) PCP-SL has placed itself outside of the law and of the democratic construction of the country”.

I wonder, thus, what would have happened in a context like this one in the event of internationalization that grants immunity from domestic prosecution to Shining Path members. Peru’s transition would have been all the more difficult. This is a part of the discussion that I feel is left out of Professor Macak’s analysis, probably because of the broad brush with which he approaches post-conflict transition, focusing on the actions of the majority of states and leaving aside the necessary nuance that the minoritarian position contributes.

Of course, I am not saying this should be reason enough to change the standard and not to grant immunity to fighters in internationalized NIACs. I am saying it would be an interesting discussion to expand on what happens when immunity through internationalization becomes an obstacle, rather than a facilitator, of national reconciliation, and invite Professor Macak to share his views on the matter.

My comments, more than a counter-argument to Professor Macak, are borne out of a concern for a line of argument I see ever more frequently in specialized literature – that there is a relation of causality between combatant immunity and compliance with IHL (and not just in internationalized contexts). This seems to be a view that Professor Macak agrees with. While discussing prosecution-related objections to combatancy, he states:

“[P]rosecution and punishment for mere participation may be seen as inefficient in attaining the humanitarian goal of IHL. It has been said that this body of law aims to ‘civilize’ or ‘humanize’ war. In order to achieve that aim successfully, IHL should provide incentives for the actors to abide by its norms: an idea sometimes described as the ‘benefits-burdens principle’. Accordingly, lawful combatants in IACs know that if they obey the rules of IHL, they do not place themselves at risk of prosecution at the end of the conflict and that they may correspondingly avail themselves of the protections of IHL. This serves as a powerful incentive for the combatants to distinguish themselves from non-combatants, thus protecting civilians, with the effect of contributing considerably to the humanitarian aim of the law. By contrast, the denial of immunity from prosecution to non-state fighters translates into a disincentive to comply with the norms of IHL”.

While I agree this argument may make sense for many (perhaps maybe even most) traditional armed groups, it certainly should not be treated as a given. There are armed groups whose sole existence is premised on the commission of atrocities as an established policy. I doubt this would change if they are granted immunity. Combatancy would not prevent ISIS atrocities in the same way it did not prevent Nazi ones, and this is something scholarship needs to be aware of, both in the context of internationalized armed conflicts, but also in what Professor Macak addresses as traditional civil wars.

In short, the relationship between immunity and compliance may sound logical in theory, but it cannot be considered a general rule, particularly with regard to these (minority of) hyper-violent groups. To this regard, ad hoc approaches like the ones pursued by organizations such as Geneva Call seem to me immensely more effective than a combatancy rule for NIACs like the one proposed by Professor Emily Crawford, upon which Professor Macak bases his findings.

Armed conflict is an incredibly complicated and massively nuanced phenomenon. In the same fashion, organized armed groups themselves also come in many shapes and sizes. I am reticent to accept a presumption of rationality for every and any armed group fighting a NIAC and would rather welcome more tailored solutions. Groups that are interested in complying with IHL protections should be rewarded, and groups specifically trying to destroy IHL protections should not. Of course, the complexities of conflict and the state-centred nature of international law make designing any such tailored system through generally applicable rules extremely complicated, which is why, perhaps, I am so interested in reading Professor Macak’s opinion to this regard.

To conclude, I just want to reiterate my congratulations for an exceptional book. I look forward to continuing the discussion.