Organizing Rebellion Symposium: The Second-Fiddle Perpetrators–Non-State Génocidaires

[Melanie O’Brien, Senior Lecturer in International Law, University of Western Australia, is an award-winning IHL teacher and Vice-President of the International Association of Genocide Scholars. Her research focuses on genocide and human rights. This is the latest post in the co-hosted symposium with Armed Groups and International Law on Organizing Rebellion.]

Tilman Rodenhäuser’s book analyses non-state armed groups in international humanitarian law (IHL), human rights law and international criminal law (ICL). Rodenhäuser is ideally placed to consider this topic, with a background of having worked for NGO Geneva Call (which engages with non-stated armed groups and their compliance with IHL) and the ICRC.

Rodenhäuser thus engages in discussion of the law as it applies to non-state actors not only in conflict situations, but also situations of human rights violations and mass atrocities requiring no connection to armed conflict- that is, crimes against humanity and genocide. Rodenhäuser dedicates three chapters to the discussion of crimes against humanity, and only one to genocide. My post will focus on this chapter.

One of the challenges of law is that it is often reactive rather than proactive. We generally cannot predict events, actions or inventions that do not yet exist, and so law reflects the practice that we are familiar with. A prime example of this is the content of the 1949 Geneva Conventions, which were drafted to suit the type of conflict that had existed for so many years: formed state armies fighting formed state armies. That is, international armed conflict. It did not take long for the gap (lack of law regulating non-international armed conflict) to be recognised and for the need to be partially filled by Additional Protocol II in 1977. However, non-international armed conflicts (NIAC) have since become the most common type of armed conflict, and we still see that IHL does not adequately apply to NIAC.

It is this gap between practice that leads to legal scholars so frequently writing about lex lata and lex ferenda. Yet, with regards to one particular issue of applying the prohibition of genocide, Rodenhäuser points out that, somewhat extraordinarily, the law is ahead of practice. Rodenhäuser notes that ‘practice or history show that genocide requires involvement of a state or state-like entity’, but that, fortunately, ‘such finding is not supported by strong evidence in legal documents, case law, or states’ opinions’ (p.297). This is extraordinary because the Genocide Convention was essentially drafted in response to the Holocaust (although Raphael Lemkin was also motivated by the Armenian Genocide to create the term ‘genocide’), which was committed by a state entity- and indeed, the Holocaust is often still seen as the ‘archetypal’ genocide. Indeed, while the definition of genocide is to some extent a representation of the Holocaust as genocide, it was not limited in every way to the Holocaust structure. Resulting in, as Rodenhäuser points out, a definition that does not limit genocide to being committed by state entities- a stark contrast to the Geneva Conventions, drafted only one year after the Genocide Convention.

Genocide has often been described as a ‘state crime’, committed by states or ‘emerging states’ (‘governments in waiting’). As Rodenhäuser notes, this echoes practice and history, in which well-known genocides such as the Armenian Genocide, the Holocaust and the Rwandan Genocide were committed by states. However, we should not imagine that genocide can only be committed by states, and this is the important argument that Rodenhäuser puts forward in his chapter on ‘Non-State Entity Involvement in Genocide’. Rodenhäuser deals with individuals (the ‘lone génocidaire’ discussion) and non-state groups, both collective entities and those ‘with little organization’ (pp. 296-300).

The discussion on collective entities is crucial. A recent ICRC study found that within armed conflict, there are groups with strict centralised organisational structure, but also others that are decentralised, alliances of small autonomous non-state groups. While the ICRC study was focused on armed conflict, it can be surmised that non-state groups, whether organised or decentralised, could also commit genocide, and therefore consideration of applicability of the law of genocide to non-state entities is necessary. It certainly has already occurred, with the Daesh crimes against the Yezidis being deemed as genocide, and the genocide in Srebrenica being committed by members of Republika Srpska, ‘a non-state entity not acting under a state’s effective control’ (Rodenhäuser, p. 297). Consider Balint’s above quoted statement of génocidaire entities also being ‘governments in waiting’- this does not make them states. Daesh may desire statehood (a ‘government in wanting’?), but it is not a state; there is no recognition of them as a state nor has that been a possibility at any point in their struggle for territory. However, regardless of whether a non-state group is a ‘government in waiting’, if they are not a state when they commit genocide, then state responsibility does not apply, and we must consider accountability for non-state actors.

Additionally, as Rodenhäuser remarks (p.298), even if genocide is led by a state entity, it is not committed without non-state involvement; providing the example of the Rwandan Genocide, in which primarily civilians carried out crimes. Thus, non-state actors only require some kind of motivation (which does not necessarily have to come from the state) to engage in atrocities. As Rodenhäuser mentions, individuals may commit international crimes, but most often usually in the context of group values or norms, albeit with differing entity structures and relationships (p. 306). For genocide to be committed, if one group has enough hatred for a second group, then an instigating actor or entity can motivate members of that group to commit genocide, through hate speech and statements that promote persecution of the targeted group.

Hence, Rodenhäuser’s discussion is an important contribution, and no doubt very useful for future genocide prosecutions of non-state actors such as Daesh. As Rodenhäuser emphasises, while a system for individual criminal responsibility exists, no rule or principle exists providing for criminal responsibility for a non-state entity (group) (p.308), and there would be myriad considerations needed in the drafting of such rules (p.311). This book is a good starting point for discussions around such responsibility. However, even in the context of individual criminal responsibility, the collective nature of international crimes is (with the exception of the lone war criminal or génocidaire) an inherent part of proving said crimes, and thus exploring the role of the non-state entity in atrocity crimes remains essential.

Rodenhäuser writes that the application of genocide to crimes by non-state actors would only apply to the genocidal crimes of killing or causing serious bodily or mental harm (p. 300). He surmises that a collective entity committing the other genocidal crimes (conditions of life designed to bring about physical destruction; imposing measures intended to prevent births; forcible transfer of children), although not necessarily being a state entity, would need to ‘exercise[..] authority over the targeted group or the territory in which they reside’ (p. 300). This may be true to a certain extent, but there are certainly ways in which these crimes could be committed without these limitations. For example, rape is a genocidal crime committed with intent to prevent births, and would not require group or territorial authority. Likewise, children can be forcibly transferred without such control. A group could impose conditions of life designed to bring about physical destruction through preventing access to humanitarian aid (food and water) by controlling territory next to where the targeted group resides, but not the actual territory where the targeted group resides. It could certainly be the case that these crimes could be committed by ‘spontaneously formed mobs’ without involvement of the territorial authority. The idea of limiting non-state actor responsibility to only killing or causing serious bodily or mental harm is unnecessarily restrictive- just because something seems unlikely (or has not occurred in practice to date), this does not exclude the possibility of it occurring. There is a tendency to focus on the ‘big picture’ genocidal crimes, such as ghettos, concentration and death camps, mass forced labour, massacres and starvation. Indeed, there have been so many different crimes committed within genocides around the world, we should never restrict the interpretation too tightly. Certainly there are ways to argue genocidal crimes were committed without group or territorial control, particularly when contextualised with other genocidal acts committed at the time: for example, it could be argued that the transfer by Jewish French parents in unoccupied France of their children to Catholic homes during World War II to preserve their children’s lives amounts to genocidal forcible transfer of children, forced by the Nazi perpetrators who left parents no choice but to transfer and convert their children.

With so many rules and so much scholarly work on state responsibility, and with the evolution of international law beyond a state-centric system, it seems unusual that it there has previously been no work like Rodenhäuser’s focusing broadly on non-state entity responsibility. There has certainly been, for example, discussion about non-state armed groups in the context of IHL and of corporate responsibility for human rights violations, but Rodenhäuser’s book is a much broader and needed analysis of non-state actors in three different but overlapping areas of international law. It provides substantial food for thought for scholars and practitioners looking to define the role of non-state actors in international law and to create rules of accountability for human rights violations and atrocity crimes, and is particularly important in filling a gap with discussion of commission of and accountability for genocide by collective non-state entities. A much needed book worthy of an Opinio Juris/Armed Groups and International Law joint blog symposium, and thank you to both blogs for the invitation to contribute to the discussion.