27 March 2018

Organising Rebellion: Non-state Armed Groups under International Law

The number of non-state actors, in the past not accountable for committing international crimes or violating human rights, is proliferating rapidly. As they are involved in the vast majority of today’s armed conflicts and crisis situations, an increasingly important question has to be raised as to whether, and at what point, these groups are bound by international law and thereby internationally accountable for their acts. In a book published in the Oxford University Press series “Oxford Monographs in International Humanitarian & Criminal Law”, Graduate Institute alumnus Tilman Rodenhäuser addresses this major issue. The book is based on research done as part of his PhD work at the Graduate Institute. Interview.

Why have you decided to write a book on this subject? 

Examining the degree of organisation of armed groups to have obligations under different fields of international law sounds like a legal exercise. But it’s more than that! The book addresses legal questions that are relevant to real-time crises. Two recent crises caught my (and others’) attention and inspired this book. The first one was the post-election violence in Kenya in 2007–2008 and the subsequent prosecutions of the main suspects by the International Criminal Court (ICC). After the presidential elections in 2007, violence rocked parts of Kenya, resulting in thousands of dead, wounded and displaced persons. When the case reached the ICC in 2010, the legal issue dividing judges was whether the organisers behind these crimes – be it criminal gangs, political parties or ethnic groups – could be classified as an “organisation” as required under article 7(2)(a) of the ICC Statute. The question of organisation behind widespread and systematic crimes is fundamental as only when this threshold is met can the ICC prosecute for crimes against humanity. Determining this threshold continues to be controversially debated among experts and scholars.

The second situation was the escalation of anti-regime protests in Syria into a non-international armed conflict in 2011–2012. In response to the Syrian regime’s violent suppression of protest, opposition groups took up arms and violently clashed with the regime forces. When violence escalated in early 2012, a UN commission of inquiry tried to establish whether internal violence could be classified as a non-international armed conflict. In that case, international humanitarian law (IHL) would apply, and certain violations of IHL, such as torture or the intentional killing of civilians, be prosecuted as war crimes. The key issue that barred the commission from qualifying the situation as an armed conflict was that it could not determine whether the armed groups in question were sufficiently organised. The commission did however point out that armed groups have certain human rights obligations.

As a scholar with a profound interest in humanitarian and legal questions, these situations made me wonder: When is an armed group sufficiently organised to be party to an armed conflict? When can it have human rights obligations – a domain traditionally reserved for states? And what is an “organisation” behind crimes against humanity? These are exactly the questions that I address in my book.

And what did you find?

I hope the book makes at least two important contributions to current debates.

The first one is rather practical. Under each field of law, I identify at what point armed groups are sufficiently organised to bear certain legal obligations, or to be relevant in the commission of an international crime. Given the great practical importance of these questions, I hope my findings will help to clarify when armed groups have fundamental humanitarian or human rights obligations, and in which cases they may face prosecution. In turn, legal clarity enables humanitarian actors to engage with groups in order to enhance their compliance with the law. I also identify how different kinds of armed groups can be involved in the commission of crimes against humanity or genocide. These results can be key to prosecuting those responsible.

The second finding is of a rather academic nature. I argue that the question of when a group becomes legally relevant under international law cannot be determined in the abstract in a one-size-fits-all approach, but depends on the nature and exigencies of each field of law and on the characteristics of the group in question. In hindsight, this is a rather logical and somewhat intuitive conclusion. Yet, it is not necessarily a conclusion that is commonplace among international lawyers.

How do your findings apply for instance to the issue of the so-called Islamic State (IS)?

One hot question over the past years was whether IS in Syria/Iraq and IS groups in Libya, Afghanistan and other states form one “organised armed group” under international humanitarian law. If that was the case, some would argue that a state involved in an armed conflict with the IS in Syria/Iraq would also be involved in an armed conflict with IS in other states and could arguably attack them by military force. A second issue was whether IS was bound by international human rights law in its relation to persons living under its control. In some parts of Syria and Libya, the IS exercised quasi-governmental authority. While the traditional legal view is that human rights law binds only states, the situation in IS-controlled territory (and similar situations in other parts of the world) raised the question of whether such groups bear human rights law obligations, and if yes, which ones. And third, let’s hope that one day an international court or tribunal will have jurisdiction over the crimes committed by the IS. In order to prosecute alleged war crimes, this tribunal will need to determine at what point violence amounted to an armed conflict. It will also need to address the question of whether IS, or other armed groups, could commit or instigate crimes against humanity or genocide. My book does not examine the IS in detail but it provides some clarifications that can help such analysis.

What is the next step of your research?

I have plenty of ideas but since I am no longer working in academia, I unfortunately do not have the time to address most of them. I hope I will be able to take a sabbatical at some point in future. For instance, I would like to further develop some of the questions I raise in my book regarding the law applicable to armed groups when they control territory. International humanitarian law provides a significant number of elementary protections for persons affected by armed groups, but probably not enough. While human rights law may complement humanitarian law, we will need to think more about what this means in practice. Would an armed group be expected to legislate in a territory under its control to ensure respect for or fulfil human rights? If that should become a norm of international law, will states ever agree to it?

Was it hard work to turn your PhD dissertation into a book?

I had no idea how many steps it takes to publish a book. It was like a job application. You cannot simply send your PhD to the publisher. You are expected to rework your manuscript, bring it in the form of a book, and submit it jointly with a comprehensive dossier. In the first round of this application process, it is on the editors of the series/ publisher to evaluate your written application – is it worth sending it out for peer review? In addition to the quality of your work, many factors come into play here, including whether the publisher recently published a similar book or whether the editor likes your style and profile. The second round is the peer review, in my case by three scholars – I have no idea who they were but their understanding of the subject was outstanding! While the moment when you are told that you get the contract is obviously very special, this is also when the work starts. The offer is normally subject to your making a number of changes based on the peer reviewers’ and editors’ questions and suggestions. This took me a couple of months. If you then think you are finally done, you are wrong. There will be editing, lots of editing – and you have to proofread your 400 pages over and over again. And then there will be typesetting, and don’t forget the thousands of footnotes. You will also need to prepare an index. I think without the exceptional support by OUP I would not have been able to finish the book…

Full citation of the book:
Rodenhäuser, Tilman. Organizing Rebellion: Non-State Armed Groups under International Humanitarian Law, Human Rights Law, and International Criminal Law. Oxford: Oxford University Press. 2018.

Interview by Nathalie Tanner, Research Office.