Militias, Rebel Movements and Armed Non-State Entities in International Law: Status, Legal Responses and Challenges to Establishing Their Accountability
in Wafula Okumu and Augustine Ikelegbe (eds) Militias, Rebels and Islamist Militants: Human Insecurity and State Crises in Africa (2010) 89-118
31 Pages Posted: 14 May 2014
Date Written: May 11, 2010
From Western Sahara in the North to South Africa at the Southern tip of the continent and from the Gulf of Guinea in the West to the Horn in the East, the recent history of the continent seems inseparable from that of armed non-state formations. In South Africa, the armed struggle waged by Umkhonto we Sizwe, the military wing of the African National Congress (ANC) and other groups put paid to the oppressive apartheid regime with the inauguration of democracy in that country. In many other African countries, independence was won on the edge of the sword wielded by similar groups: Frente de Libertação de Moçambique (FRELIMO) in Mozambique; Mau Mau in Kenya; South West Africa People's Organization (SWAPO) in Namibia; Front de Libération Nationale (FLN) in Algeria among others.
Current African experience demonstrates that the activities of armed non-state formations did not cease with the hoisting of independence flags. For various historical reasons, new struggles emerged in many countries not long after these celebrations had ended. Some of these conflicts can be explained by oppressive dictatorships, ethnic & religious struggles for power and resources and abortive attempts at democratisation. There are quite a few countries on this list: the Democratic Republic of the Congo (then Zaire), Mozambique, Angola, Sudan, the Comoros, Nigeria, and others. While the activities of some of these movements have not yielded quick success thus provoking endless spirals of violence, elsewhere, they have resulted in decisive ends. In some countries, the endeavours of these non-state formations have resulted in take over of power thus catapulting them into government: Uganda’s National Resistance Movement (NRM); Rwandan Patriotic Front (RPF); the Alliance of Democratic Forces for the Liberation of Congo-Zaire (ADFL); and the National Patriotic Front of Liberia (NPFL) are good examples. In other countries, rebel activities have resulted in fragmentation and secession, as was the case of Eritrea, and possibly Southern Sudan. Experience from some African countries also shows that some armed non-state formations may not necessarily have grand political objectives such as national liberation movements and rebel movements whose ultimate goal is either to take power or reach an accommodation for a new political dispensation. While this category may be appropriated by political formations for their own ends, it remains founded in either criminal (petty or organised and mafia-like) motives or espouses pseudo-religious messages. The Mungiki in Kenya and similar criminal gangs and sects are a good example.
The fact that the activities of armed non-state actors in general have invariably been regarded as criminal (or terrorist) in the various national systems has coloured responses by relevant authorities. What about international law? What is the place of these groups under the various branches of international law? It is similarly true that by their very existence, these entities – rebel movements, militias and other armed groups – operate against or threaten to overturn existing social, economic and legal orders, not least the international legal order. For instance, as shown later in this chapter, some of the most egregious crimes committed during the continent’s many conflicts have been attributed to some of these armed formations. As noted already, activities of such entities have in a number of cases resulted in redrawing the boundaries of states, touching on a central pillar of the international legal order. Further, armed conflicts in various parts of the continent have resulted in far-reaching socio-economic effects on individuals and entire communities. For at least these reasons, international law – hitherto unresponsive to non-state entities – has attempted to deal with these new actors whose actions often have international ramifications. Since the various non-state actors described above may form separate categories, the response of international law and its various branches has not been uniform.
This chapter has four main objectives. First, it attempts to distinguish the various categories of actors – national liberation movements, rebels and militia as well as other relevant groups – in legal context. Second, it reviews international law and its various relevant branches in relation to these groups – in particular rebel movements and militia. Third, it outlines the legislative responses by the AU and UN to rebels and militia activities within the African context. Fourth, it provides an overview of the breaches of international law committed by these actors and how international and national legal regimes has held them accountable, and some of the challenges of holding perpetrators accountable under international law.
The chapter has three parts. The first part, of which this introduction is part, sets out the theoretical framework while clarifying some of the basic concepts. It also outlines the place of relevant non-state actors in international law generally. The second part deals with issues related to legal responses by states and the international community of states to rebels and militia under various branches of international law. It then addresses the modalities and challenges related to establishing the accountability of members of these groups. The last part concludes the chapter with the findings and recommendations.
Keywords: rebels, militia, islamist militants, non-state actors, international law, accountability, mai mai, frelimo, mungiki
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