Organizing Rebellion Symposium: Non-State Armed Groups’ Organizational Structures–Some Thoughts and Inquiries

[Ezequiel Heffes is a Thematic Legal Adviser for Geneva Call and a Lawyer at the University of Buenos Aires School of Law. The views expressed here are the author’s own and do not necessarily reflect those of Geneva Call. This is the latest post in the co-hosted symposium with Armed Groups and International Law on Organizing Rebellion.]

Although the nature, organization and structure of non-State armed groups (NSAGs) are issues of increasing concern, in particular due to the participation of these entities in the majority of armed conflicts (here, at 19), their place and regulation in international law still remains insufficiently explored. Two explanations serve to justify this situation. First, the law applicable upon NSAGs is part of public international law, which has always been State-centric in nature; and second, from a methodological perspective, this category of actor encompasses a variety of entities with different features, goals and even international organizations. While some may have (or have had) strong individual leaders, such as Joseph Kony in the Lord’s Resistance Army (LRA) in Uganda, Foday Sankoh in the Revolutionary United Front (RUF) of Sierra Leona, or John Garang in the Sudan People’s Liberation Movement/Army (SPLA/M), others may be more dispersed and decentralized (here, at 39). Furthermore, NSAGs may fight against foreign military occupation, to remove or replace existing governments, to become an independent State, to promote a religious agenda, or act from purely economic incentives (at 11). Identifying and categorizing NSAGs’ common constitutive elements has proven to be a rather difficult task, in particular for international lawyers.

It is therefore a great merit of Tilman Rodenhäuser to address some of these challenges, offering a thorough analysis through the lens of an international legal scholar and practitioner. The book, which is based on the author’s Ph.D. thesis defended at the Graduate Institute in Geneva, aims at clarifying what degree of organization NSAGs should have to fall under international humanitarian law (IHL), international human rights law (IHRL) and international criminal law (ICL). “Very limited consideration has been given”, Rodenhäuser correctly asserts, “to the question of whether having a degree of organization sufficient to invite obligations in one field of law would also signify a sufficiently organized non-state entity in another field” (at 7). By inquiring into the organization requirement, its origins, codifications, interpretations and the ways in which it has been applied by different institutions and bodies, Rodenhäuser’s goal is to

set out an understanding of the requisite degree of organization of non-state parties to an armed conflict that is, on the one hand, sufficiently broad to apply to existing as well as future conflicts, and, on the other hand, precise enough to provide guidance for practitioners and judges engaged in conflict classification (at 5).

This issue, indeed, is not merely an academic one. It is one of the most important legal constructions for the application of international law to non-State entities. Assessing the organization criterion is essential, for instance, for conflict classification, which determines the body of law applicable to a violent scenario. For humanitarian organizations, understanding how a NSAG is organized serves the pragmatic goal of identifying with whom to negotiate access to a given population or to define a specific strategy of engagement. The organizational structure can also “indicate the levers of influence that leaders have at their disposal” (at 23). For the victims in the field, studies have shown that the way in which NSAGs are organized can make hostilities more violent, longer lasting and harder to resolve. Indeed, their organizational structure is an important determinant of their behaviors. When dealing with individual criminal responsibility, assessing NSAGs’ organization is an essential step to determining whether an individual can be held responsible, for instance, for the commission of war crimes or, alternatively, for mere violations of domestic law.

Although NSAGs are not a new phenomenon, with their activities described as early as the fifteenth century B.C. (at 1), armed conflicts involving a variety of these entities with differing degrees of organization and control are likely to increase. The present book should thus be viewed as part of a growing trend of literature which aims at explaining NSAGs’ structures, behaviours and legal regulation(s) from different perspectives. Its focus should not be surprising and is certainly welcome.

Although I do agree with many of the arguments employed (for a longer review, see here), I am grateful to have the opportunity to question the author about specific legal and operational challenges that have been insufficiently explored in the book.

The Different Structures of Non-State Armed Groups

International law has always conceived NSAGs as “unities”. IHL, for instance, applies to a NSAG as a party to an armed conflict. The specific rules will vary in some respects depending on different elements. The 1977 Additional Protocol II (AP II) to the Geneva Conventions, for instance, has a more restricted scope of application than the one of Common Article 3 (CA3) – although Tilman concludes that “the degree of organization required from organized armed groups under APII is not necessarily as high as many have suggested or feared” (at 54).

When explaining what kind of non-State entities the book addresses, the author gives three key features: i) that they are a collective entity; ii) that the group has the ability to ensure respect for fundamental humanitarian norms; iii) that they have the capacity to engage in sufficiently intense violence (at 72). Although recent studies have shown that NSAGs have indeed different hierarchical structures, the idea that they are in some way uniform collective entities has not been thoroughly challenged from a legal point of view. This can be explained by Tilman’s suggestion: “[t]he prototype of a party to an armed conflict is the state” (at 72).

If one considers those NSAGs fighting in current conflicts, conceiving their structures as those of States seems more as a legal fiction than a real-life scenario. Not only NSAGs modify their level of organization during the hostilities, either increasing or decreasing it due to a variety of reasons, but NSAGs can also have different degrees in different geographical areas of the State(s) they are fighting in. A NSAG may have the organizational elements required to be bound by AP II in a specific region of a country, but a very different (and lower) one elsewhere. It may be able to provide services, such as health care and education in accordance with IHRL, only in certain geographical areas.

Identifying this reality is important for determining the applicable law, as well as for understanding what to expect from those groups in terms of compliance. Would the obligations of the NSAG as a “uniform” collective entity differ according to the territory in which they are located? Would it be possible to argue that a group is bound by a limited number of rules in a specific region, and by a different one elsewhere?

Non-State Armed Groups’ Views on IHRL

A second point that deserves further attention is related to the sources referred to when assessing the possible application of IHRL to NSAGs. In recent years, it is undisputed that there has been an increasing practice by United Nations’ institutions and bodies in this regard (at 21). Limited attention has been given, however, to the actual views of NSAGs on IHRL, even though they frequently recognize the application of this legal framework to the conflict in which they are involved (at 107). Examples of such practice can be found in agreements concluded in the Philippines and Sierra Leone, and in several unilateral declarations. NSAGs can also sign the so-called “Action Plans” on child protection issues with the UN, committing to respect not only IHL but also some IHRL obligations (at 10).

Tilman importantly acknowledges that there have been recent cases in which NSAGs have publicly committed to respect and protect IHRL, even adopting internal rules in this direction (at 211-212). His analysis, however, does not fully address the challenges that considering NSAGs’ views on this legal regime may entail. Having a group including international rules within its code of conduct, disseminating these and investigating and punishing its members for their possible violations can be a useful tool to generate respect. Similar proposals can be done with respect to special agreements, the abovementioned UN action plans, unilateral declarations and so on. Yet, it has so far remained unclear whether they have any legal value under international law. Are these only documents with political goals? Do they have any international legal relevance? And more importantly, would they have an impact on the application of IHRL? If several NSAGs publicly claimed that they are not bound by a specific IHRL provision (excluding, of course, those of jus cogens nature), could one still claim that they are?

The lack of clarity regarding these and other issues reveals the importance of the Tilman’s book, which is certainly inspired by practical problems. Organizing Rebellion constitutes an excellent addition not only to the literature of NSAGs, but most importantly to the one of international law in armed conflict, as its goal is to clarify legal concepts, “conceptualize complex reality, and present different ways in which existing law can be interpreted” (at 328-329). As a practitioner, I can only confirm that Tilman’s study will likely be of significant value to both scholars and decision-makers, including judges, governments, members of international and non-governmental organizations, and in particular those individuals and entities in charge of classifying situations involving non-State entities.