Organizing Rebellion

Abstract

This book identifies the degree of organization required from non-state armed groups (i) to become party to an armed conflict and thereby bound by applicable international humanitarian law; (ii) to have possible human rights obligations; and (iii) to create a context in which international crimes can be committed. Part I identifies three principal criteria that any party to a non-international armed conflict—including decentrally organized armed groups, transnational groups, or cyber groups—must meet: it must be a collective entity with sufficient capabilities to engage in hostilities and the ability to ensure respect for basic humanitarian norms. Part II conceptualizes contemporary debate and international practice on the question of whether armed groups have human rights obligations. It suggests that the sources and scope of potential human rights obligations of armed groups are understood best on a spectrum, with consideration given to three categories: groups exercising quasi-governmental authority; groups exercising de facto control over territory and population; and groups exercising no territorial control. Part III examines the requisite degree of organization of armed groups to create contexts in which crimes against humanity or genocide can be committed. It argues that the degree of power and organization of groups behind these crimes depends on whether the group instigates or actually commits the crimes. In sum, this book shows that the requisite degree of organization of armed groups to have obligations under different fields of international law cannot be determined in the abstract. It depends on the specificities of each field of law and the circumstances of each case.

Towards a Regime of Responsibility of Armed Groups in International Law

“…This is also referred to as the 'responsibility gap'. 194 As explained before, the actions of armed groups fighting in a NIAC will not be covered by the ASR unless the armed group is successful and becomes the new government or a new state. 195 Additionally, the ASR will cover armed groups acting as instruments of the state, either empowered by the law of the state to exercise elements of governmental authority or acting under its effective control.…”

“…193 In relation to the threshold that coalitions of armed groups need to reach in order to be considered as one party to an armed conflict, Rodenhäuser has stated that, apart from general coordination powers, the leadership of the group needs to exercise a degree of 'strategic authority'. 194 In his view, this represents a slightly higher threshold because '[w]hile operational coordination requires the ability to coordinate military activities and to distribute logistics, strategic authority signifies leadership's de facto authority to determine the overall military objectives and the internal rules that all sub-groups have to follow. 195 Nevertheless, this observation do not necessary require a higher threshold, it could rather be considered as a mere clarification or interpretation of the coordination powers of the leadership.…”

“…Moreover, it was proposed that some weight should be given to this practice when there is convergence with the practice of states. 194 By reviewing the commitments of armed groups in the previous sections, it is possible to appreciate an emerging practice and opinio juris of armed groups that are willing to provide some measures of reparation to civilians who are victims of non-international armed conflict. However, it is still too early to conclude the consistency and clarity of such practice and opinio juris.…”

“…See also UN Secretary-General, Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka (31 March 2011) para. 188194 K. Schmalenbach, 'International Responsibility for Humanitarian Law Violations by Armed Groups' in H. Krieger (ed), Inducing Compliance with International Humanitarian Law: Lessons from the African Great Lake…”

International Law and Governance by Armed Groups: Caught in the Legitimacy Trap?

“…However, in international law and political science, the debate has moved on. International legal scholars have increasingly focussed on the applicability, adaptability and compliance-pull of international humanitarian law in non-international armed conflicts (Bellal 2016;Fortein 2017;Krieger 2015;Rodenhäuser 2018). Political science research surrounding rebel governance has demonstrated that armed groups may provide governance structures where they have established some form of control over a territory or population (Mampilly 2011;Mampilly 2015a, 46;Weinstein 2007;Wood 2015, 21-24).…”