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

See all articles by Mark Klamberg

Mark Klamberg

Stockholm University - Faculty of Law

Date Written: February 9, 2017

Abstract

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

Suggested Citation

Klamberg, Mark, Possibility of a Non-State Actor to Establish Courts, Issue Sentence and Avoid Criminal Responsibility for Acts that Otherwise Would Constitute War Crimes (February 9, 2017). Faculty of Law, Stockholm University Research Paper No. 2. Available at SSRN: https://ssrn.com/abstract=2914188 or http://dx.doi.org/10.2139/ssrn.2914188

Mark Klamberg (Contact Author)

Stockholm University - Faculty of Law ( email )

S-106 91 Stockholm
Sweden
+46 8 16 11 90 (Phone)
+46 8 612 41 09 (Fax)

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