How did you come to choose your research topic?
Incidentally, armed groups, as a phenomenon, have been an area of research interest dating back to my years in law school, as I pursued my LLB. However, the choice to explore the concept of territorial control was informed by a realisation at the time that there was insufficient (if any) legal analysis on the matter in the international legal sphere. Further, at the time of developing my research proposal, the “Islamic State” had just taken over significant swathes of territory in Iraq and Syria (2014–2017); a form of territorial dominance that posed significant questions about the capacity and resilience of the international legal system in addressing such challenges. Indeed, though other aspects of armed groups had – till then – received significant legal scholarship (such as the nature of their violence and organisation), the concept of territorial control remained relatively unexplored.
Can you describe your thesis questions and the methodology you used to approach those questions?
The questions I sought to address throughout my research were informed by the challenges presented by entities, such as the “Islamic State”, to the vitality of the international legal system in addressing issues related to their territorial dominance. These questions were:
- What does it actually mean to have territorial control? Is it the same for different groups?
- When is such control sufficient to engage full protection of the relevant legal regimes for populations caught in the fray?
- How about when control seems unpredictable or significantly depleted? How are such situations the same or different from situations such as the “Islamic State” between 2014 and 2017? Incidentally, how would the subsequent decline of the “Islamic State” have affected their obligations – if any – under international humanitarian law (IHL) and international human rights law (IHRL)?
- Does it matter which legal regime one is dealing with (IHL or IHRL)? Would territorial control mean the same thing, or do populations get different protection regimes at different times?
Therefore, the methodology adopted was based on some critical considerations, for the objective of defining territorial control did not, necessarily, lend itself to the usual normative and conceptual approach generally undertaken in legal research. Indeed, I quickly realised that measuring territory, or computing and quantifying control, would be more appropriately empirically determined. This explained the fact that most of the works I came across in my research, which had clearer parameters of territorial control by armed groups, were from empirical work done in the field of political science. However, as my project was primarily to be a legal exercise, I found that the most prudent approach, theoretically, would be to filter the notion of territorial control through the primary legal frameworks appropriate to the operations of armed groups in armed conflict – that is, IHL and IHRL. This meant that the analysis would be largely functional – that is, the legal evaluative exercise would only help determine the nature of territorial control required for the fulfilment of legal obligations under IHL and IHRL. Still, empirically sourced information from the political science field was relied upon, to inform and develop the conceptual normative approach undertaken within the international legal theoretical evaluation. In that sense, in defining territorial control by armed groups for the purposes of IHL and IHRL obligations, a (sketch) picture was (indirectly) drawn (in zooming out) of what territorial control more broadly looks like, and could look like, under international law, and possibly other relevant fields of the international legal discipline. However, it is worth noting (as I do in the thesis) that there is an increasing turn towards empiricism in international legal scholarship.
What are your major findings?
Overall, the study undertaken exposed a “mixed bag”: there is a sense in which the international legal system was revealed to be well equipped on the one hand, but also divergent on the other hand, in the way it approaches the phenomenon of armed groups, their control of territory and the related international legal obligations. This could be interpreted in two ways: either (1) the international legal system’s resilience in addressing these challenges is embodied in its diversity and plurality of approach, or (2) the presence of varied approaches and conceptual considerations of the notion demonstrates a challenge of precision, and a need for clarity of interpretation in legal commentary and practice. Therefore, the analysis in the research imbibed both considerations, revealing the different manifestations of control under the appropriate legal regimes, while establishing some precision and coherency in more definitively determining the meaning of territorial control.
Moreover, the research found that “effectiveness” of influence over physical territory was critical in defining the meaning of territorial control for armed groups broadly under international law. Even with the emergence of deconstructive approaches to the tangibility of territory and its control, the study found that for armed groups, territorial control maintained a spatial-physical quality, which can be traced along a broad range of manifestations: full control, incomplete control and intermediate control of territory. However, the study found that the applicability of IHL and IHRL is based on the functional international legal personality of armed groups, and the acceptance of the relevant legal norms by the territorial states upon which these groups effectively carry out their activities. In this sense, it is clear from the research that territorial control does not initiate legal obligations (under IHL and IHRL) for armed groups – because they have obligations beforehand, especially towards those in their hands before they control territory. Territorial control enhances their obligations, ushering in greater protection for populations in territories under armed group dominance.
With specific regard to the IHL regime, territorial control was found to be manifested in five particular conceptual narratives: 1) the territorial “control-lite” conception, referring to the “in-between” position between both the existence and the lack of control; 2) the objective conception, emphasising the actual control of territory; 3) the subjective conception, focusing on defining control by its purpose to carry out military operations and fulfil the requisite legal obligations; 4) the non-territorial approach, which moves away from territory towards the broader capacity of armed groups; and, 5) extraterritoriality, which incorporates the control of territory by armed groups across international frontiers. In this regard, the study found “effective control” as the overarching definition of control under IHL based on an analogy with the law of occupation. Concerning the control of territory for IHRL purposes, control was found to comprise two fundamental conceptual approaches: 1) the traditional approach, usually applied to quasi-state (state-like) forms of control by armed groups; and, 2) the functional approach, which ordinarily incorporates mainstream armed groups with military control, that does not reach the state-like threshold. Drawing on the extraterritorial human rights model and control under IHL, the study finds that territorial control under IHRL is ultimately functional and flexible, ensuring that as many armed groups as possible with territorial influence bear their obligations under IHL and IHRL for the benefit of populations under their control.
What could be the social and political implications of your thesis?
From Eastern Ukraine to Afghanistan to Northern Mali, the dominance of armed non-state actors over territory and populations is increasingly having impact on the day-to-day lives of individuals. My thesis provides a concrete theoretical understanding of the commencement, duration and termination of control of territory by armed groups, particularly within the international law disciplines of IHL and IHRL. Its results, hopefully, will be of particular interest for practitioners of these disciplines, involved in engagement with armed groups – particularly for humanitarian reasons. It will also be valuable for state actors interested in understanding the scope of their obligations when armed groups are in control of some territory. Further, the thesis may be relevant for ongoing projects by some stakeholders concerning the compilation of good practice of armed groups with regard to normative compliance, in order to develop manuals that ensure that armed groups follow some basic rules towards civilians in their military operations.
Now that you mention the situation in Ukraine, as an African scholar, what do you think about the reluctance of some African countries to take a stand on that situation?
Let me preface my response with two quick reflections: 1) it is mostly incontestable that Russia’s invasion of Ukraine is a serious violation of the UN Charter; and, 2) the separatist entities in Eastern Ukraine initially illustrated the complexities in understanding the nature of territorial control by armed groups in circumstances of proxy wars – a matter addressed in the thesis within the context of “indirect occupation” through control by an armed group (“occupation by proxy”). Now specifically to your question, in terms of context, it is important to note two sociopolitical considerations: 1) the Soviet Union was a critical partner for African anticolonial and liberation movements, which sought independence from Western states; 2) Russia has sought to rekindle these ties through offering alternative partnerships to those of Western states, in political support, trade, and military cooperation, without preconditions. With these in mind, I think that the response of some African states to the situation in Ukraine should not necessarily be viewed as normative, but rather as a reflection of shifting geopolitical allegiances.
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On 15 December 2021, Joshua Joseph Niyo defended his thesis in International Law, "Defining the Control of Territory by Armed Groups in Armed Conflict: Normative, Conceptual and Contemporary Considerations". The jury members were Professor Paola Gaeta (chair and internal examiner), Professor Andrew Clapham (supervisor) and Professor Katharine Fortin (external examiner).
Access to the PhD thesis:
Members of the Geneva Graduate Institute can access the PhD thesis on this page of the Institute’s repository. Others may contact Dr Niyo at joshua.niyo@graduateinstitute.ch.
Citation of the PhD thesis:
Niyo, Joshua Joseph. “Defining the Control of Territory by Armed Groups in Armed Conflict: Normative, Conceptual and Contemporary Considerations”. PhD thesis, Graduate Institute of International and Development Studies, Geneva, 2022.
Interview by Nathalie Tanner, Research Office.
Banner picture: excerpt from an illustration by kirill_makarov/Shutterstock.com.