We are pleased to introduce a symposium building on Armed Groups and International Law. In the Shadowland of Legality and Illegality (Edward Elgar, 2023). The book is not just on armed groups and international law – which may not be obvious from the title. Instead, it explores how the relation between armed groups and international law is conceived, and the different tensions that arise from this complex relationship.
It is well-known that the majority of armed conflicts taking place around the world today include one or more armed groups. This has been the case for a number of years already, with examples found in the Democratic Republic of the Congo, Israel/Gaza, Mali, Sudan, Myanmar, Colombia, Central African Republic, the Philippines, Syria, among others. Despite the active participation of armed groups in these protracted non-international armed conflicts (NIACs), many questions remain as to their status and position within the international normative architecture. Debates still exist about armed groups’ legal personality, the nature and scope of their obligations under international law, and the processes through which these obligations are established.
Much of this complexity stems from the fact that armed groups operate within both domestic and international realms, each with their own set of regulations. While armed groups are often deemed unlawful under States’ domestic law, international law (and in particular international humanitarian law (IHL)) generally remains silent about the legality of their existence as collective entities. Instead, it focuses on prescribing their obligations in conflict settings. This, however, is also notably intricate, as the legal space that armed groups inhabit may also involve other bodies of law, including international human rights law (IHRL). As Kooijmans noted back in 1991, NIACs represent, in fact, a “true shadowland” between this IHRL and IHL (at 226).
The legal shadowland that Armed Groups and International Law explores arises (we argue) due to three related tensions that we identify in the introduction. The first tension arises out of the fact (mentioned above) that armed groups remain unlawful under a States’ domestic law framework, while having limited legal personality under IHL. As a result, armed groups’ members are often simultaneously considered fighters under IHL and criminal subjects under domestic law. This means that their actions can be lawful under international law, at the same time as being unlawful under domestic law. It also leads to the fact that armed groups can be described as both ‘subjects’ and ‘objects’ in the grammar of international law. They are subjects because they bear the same obligations under IHL as States. But they remain objects, in the sense that they remain subjects of national law and their international legal personality is severely limited. They rarely have any legal agency and are seldom able to engage in formal mechanisms of procedural accountability.
The second (connected) tension relates to the role of armed groups in law-making processes. It arises out of the fact that even though armed groups are bound by the same IHL norms as States in NIACs, they have had little (or no) formal part in these rules’ creation. This exclusion – however understandable – has inevitably played into the content of NIAC rules, which find that there is no belligerent privilege in this type of conflicts, no prisoner of war status (despite a range of baseline protections that do apply), no explicit authority to detain for armed groups, and no legal ability to withhold consent to relief operations (though even in IACs, such ability is not absolute).
The final tension that Armed Groups and International Law explores arises as a result of armed groups governing territory. We note that individuals associated with such groups, who would typically fall under the category of the ‘governed’ within national legal frameworks, have also assumed rules as ‘governors’ within the framework of international law. Indeed, the volume seeks to enter into conversation with the important body of social and political science scholarship on rebel governance, which provides details of armed groups’ justice systems, police forces, taxation systems and public services such as education and healthcare.
Given the multi-layered nature of the diverse legal regimes applicable in these areas – often overlapping, complementing, or conflicting with each other – the book explores the fact that it is conceivable within the realm of international law for an individual to embody multiple (legal) roles at the same time, such as being a member of an armed group, a terrorist, a criminal, a law-abiding citizen, a fighter, a military leader, a legislator, and a law enforcer. We also wanted to explore the lived experiences of rebel governance from a legal perspective, providing insights into the consequences of rebel governance for civilian protection.
The purpose of this symposium, building on the edited volume, is to shine a light on how these tensions play out in several substantive areas. The book is organized around four topics, which combine legal doctrinal, socio-legal, and comparative methods of analysis: (a) the position of armed groups vis-à-vis international law in situations that are pre-armed conflict or outside armed conflict; (b) the criminal liability of armed groups and their members; (c) the phenomenon of rebel governance; and (d) the role of armed groups in post-conflict settings.
We like to think that the book is the first systematic multidisciplinary and multi-authored study providing a comprehensive legal analysis of armed groups in the international realm. By including bottom-up perspectives that give attention to the civilian experience of armed conflict and themes relevant to an exploration of civilian agency, it also provides a deep analysis of some of the problems at the heart of the legal framework pertaining to civilian protection.
In this symposium, we present a series of analyses that are based on chapters in the book as a ‘taster’ of the volume. First, we have a post by Luke Moffett which looks at whether there is a right to rebellion for armed groups under international law. Next, Rogier Bartels focuses on the matter of combatant immunity versus prosecution for armed group members. Ezequiel Heffes then looks at the way in which armed groups’ own laws fit within the shadowland of legality and illegality that we explore.
Then, we turn our attention to Marta Furlan, a political scientist, who looks at the provision of healthcare by armed groups and the interplay between Sharia law and international law. After Furlan’s piece, Helen Duffy’s analysis focuses on the administration of criminal justice by non-state armed groups in de facto control of areas (de facto justice). Finally, Katharine Fortin offers reflections examining the manner in which armed groups’ civilian and political wings fit within the IHL framework.