Accountability for International Crimes within Insurgent Groups

Abstract

In Syria, dozens of women and men are held in unofficial ‘prisons’ run by some of the armed groups fighting ISIS or the Syrian Government. The detainees are accused of a variety of offenses, including war crimes, and wait to be tried by one of the several, competing courts established by different groups. Some courts are presided by former judges and others by clerics or military leaders. They apply anything from a “Unified Arab Criminal Code” prepared by the Arab League, to the judge’s own personal interpretation of the Sharia. Trials are quick, and punishment is often death. In a similar fashion, in the rebel-held part of Ukraine, two men were accused of sexual assault and tried by the ‘First People’s Court’ established by pro-Russian insurgents. On the basis of a public vote in the town hall at the conclusion of a ‘trial’, one man was condemned to death by firing squad, the other to serve on the front line to “redeem his honour in combat”. This mirrors the practice of insurgents in other wars in Sri Lanka, El Salvador, Nepal, Sierra Leone, Colombia, Rwanda, Congo, Sudan, Kosovo, and many other places where irregular tribunals were created.

What are the reasons that push a non-state armed group to establish a court that ostensibly includes within its jurisdiction the sanction of violations of international humanitarian law? Can it be said of insurgent groups that they have a self-interest in ensuring accountability of their members, in a manner that parallels what has been suggested with respect to the armed forces of the state?

There are at least four related but distinct bundles of questions that arise from a consideration of the practice of insurgent courts in the context of an armed conflict. First, are there legal standards that explicitly or implicitly legitimize or prohibit the establishment of courts by an armed non-state actor? Second, if such courts could be lawfully created, what are the conditions required under international law for them to exercise their jurisdiction validly? Third, if an insurgent court is lawfully created and has exercised its jurisdiction in compliance with international law, what recognition is to be accorded to its judgments? And fourth, what does this reflection on the possibility and conditions of insurgent justice tell us about our conception of the rule of law and, more broadly, the concept of law?

These are vast and complex questions that call for a detailed exploration of existing international legal standards spanning international humanitarian law, international criminal law, international human rights law, and general public international law. What’s more, in order to offer a meaningful critique of the suggestion of insurgent justice, the study must be grounded in a fair appreciation of the reality of the practice of non-state armed groups in this respect, something on which little research has been systematically carried out. As a result, this essay will not seek to offer answers to all these complex questions, much less to the overall legality of insurgent justice, but rather will attempt to map as comprehensively as possible the questions that must be explored in each of the four bundle of issues identified in the previous paragraph.

Keywords: law, war, insurgents, tribunal, humanitarian law, human rights, rule of law