Possibility of a Non-State Actor to Establish Courts, Issue Sentence and Avoid Criminal Responsibility for Acts that Otherwise Would Constitute War Crimes
11 Pages Posted: 9 Feb 2017
Date Written: February 9, 2017
This paper is drafted pursuant to the following overarching question: what are the legal conditions for a non-state actor to establish courts in territories not fully controlled by a state during a non-international armed conflict? Have such courts existed and been recognized in earlier conflicts and how? The starting point is that non-state actors cannot set up courts and carry out sentences of such courts with the effect that they can avoid criminal responsibility for acts that otherwise would amount to war crimes. However, there may be circumstances where courts on rebel controlled territories appear necessary and in certain situations argue against that a certain act is a war crime. One may conceive two such situations. First, in situations where judges and state officials appointed before the outbreak of the armed conflict continues or resumes their duties to uphold pre-existing law on territory controlled by a non-state actor; second, when a non-state actor upholds discipline among its own armed forces. There is a need to distinguish these two situations from cases where a non-state actor introduces or amends laws which significantly deviates in a more severe direction compared to the laws existing before the outbreak of the armed conflict. Thus, in the latter cases a non-state actor and individuals associated with such an actor may not use a conviction by a court as a ground for excluding criminal responsibility.
Keywords: Non-state actor, international humanitarian law, sentence, trial
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