Trials and Penal Sanctions by Non-State Armed Groups

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The scope of international humanitarian norms imposed on non-state armed groups (NSAGs) still remains underdeveloped in law and practice. One field where this underdevelopment has become increasingly evident is the administration of justice by NSAGs. My proposed research analyses the legal framework for the establishment of courts and other judicial structures through NSAGs. In times of armed conflict state authorities often lose the ability to effectively govern certain territories, including the maintenance of their judicial systems. This legal and institutional void is often filled through new institutions established by the insurgent movements in control of the territory concerned. In practice, almost all armed groups develop some form of rule of law and a system for the administration of justice, with contemporary examples ranging from Kurdish groups in Syria to the Tamil Tigers in Sri Lanka. Usually, states on whose territory these institutions are based fiercely object to the idea of insurgents setting up courts, a power so central to state sovereignty, and dispute the characterization of their decisions as 'law'. International humanitarian law and human rights law provide for a substantial set of restrictions to judicial proceedings in armed conflict. The Geneva Conventions and customary international law require courts to be independent and impartial, established by law and providing the accused with fundamental fair trial guarantees. Not complying with these essential requirements while passing sentences can even constitute a war crime. The first research question is, therefore, to what extent these restrictions apply to NSAGs and how these groups can comply with them. This is a question I am currently trying to answer in my MPhil research, which the DPhil will build upon. If armed groups had no possibility to impose penal sanctions through courts, perpetrators of serious violations of International Humanitarian Law might go unpunished in areas where the State is unable to enforce the law. However, if these courts are not set up in compliance with international law themselves, this would compromise any positive effect they might have on the enforcement and implementation of international humanitarian law. Going a step further, the second research question will analyse whether there are circumstances in which international law actually imposes an obligation on NSAGs to conduct penal proceedings. NSAGs are required by international humanitarian law, in particular the Geneva Conventions and their Additional Protocols, to implement its provisions and sanction perpetrators either through disciplinary or penal action. In addition, the doctrine of command responsibility in international criminal law imposes a duty onto rebel commanders to punish perpetrators if they want to avoid being held criminally responsible for the actions of their subordinates. Finally, the still controversial application of international human rights law to insurgent groups might suggest that these groups are under an obligation to maintain public order in the territories they control. All these tasks seem impossible to fulfil without some form of judicial structures. This research question is inherently linked with the first: if NSAGs are under an obligation to conduct penal proceedings there must also be a way to discharge that obligation without violation of other norms of international law.Finally, the third research question looks at the engagement with and recognition of NSAG courts by States. For example, if an individual properly convicted by a rebel court might have to face a second trial by State courts or, the other way around, whether such conviction might serve as a legal basis for imprisonment through State institutions. It will look at contemporary state practice towards rebel judicial systems in international fora and instances where such courts have been recognized in domestic or international jurisprudence.