While the law of armed conflict is understood as granting armed groups the possibility to install judicial mechanisms in order to pass judgments upon individuals under their control, the legal basis for the establishment of such courts seems to remain unclear. Ezequiel Heffes argues that all parties to a conflict, whether States or non-state armed groups, may find the grounds for the creation of courts in their own legislation. According to the author, such an interpretation, based on the principle of the equality of belligerents, could enhance respect for the rule of law.

In the context of non-international armed conflicts (NIACs), it has been recognized that international humanitarian law (IHL) creates equal obligations upon States and non-state armed groups (NSAGs). While the administration of justice is a governmental function par excellence, IHL also recognizes that during NIACs non-state entities must respect certain judicial guarantees. The most basic provision is Common Article 3 (CA3) of the Geneva Conventions, which states that “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples” is prohibited with respect to persons taking no active part in hostilities.

Additional Protocol II (AP II) develops and supplements CA3. Its Article 6(2) is applicable “to the prosecution and punishment of criminal offences related to the armed conflict” and states that “[n]o sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality”. As the ICRC commentary affirms, it applies equally “to civilians and combatants who have fallen in the power of the adverse party and who may be subject to penal prosecutions” (para 4599). In addition, Article 6(3) asserts that a convicted person “shall be advised on conviction of his judicial and other remedies and of the time–limits within which they may be exercised”.

Notice that both CA3 and AP II grant States and armed groups the possibility to install judicial mechanisms in order to pass judgments upon individuals under their control (see Kleffner, p. 451). However, the legal basis for their creation seems to remain unclear. This post addresses this issue, aiming to contribute to the ongoing debates on armed groups’ behaviours, especially to enhance respect for the law of armed conflict.

Armed groups’ courts as regulated by States’ domestic law

The ICRC’s Customary Humanitarian Law study defines a “regularly constituted court” as one which “has been established and organised in accordance with the laws and procedures already in force in a country” (p. 355). In this sense, Bhuta has recently explained that the phrase is “normally taken to mean constituted under regular, constitutional laws of the state”. According to this view, IHL does not provide a legal basis for the establishment of courts by armed groups, and this would be only achieved by virtue of the domestic legislation of a State – which would not allow armed groups to set up a parallel judicial system completely separate from that of the State.

There are other views in favour of this position. Justice Alito in his dissenting opinion to the Hamdan v. Rumsfeld decision (.pdf), for instance, follows the domestic law perspective as a basis for the establishment of courts in NIACs, interpreting CA3 “as looking to the domestic law of the appointing country” (p. 3).

The practical consequences of only considering the link between courts established in NIACs with States’ domestic law have not been thoroughly envisaged. At least two problems can be identified. First, conflicts fought only between NSAGs would not be covered. This is because if one accepts the view that States’ law governs the establishment of judicial bodies, thus making their creation by a NSAG a priori illegal, then the judicial guarantees included in CA3 would be stripped of any practical effect.

Second, it seems unclear how this position would operate in complex scenarios, such as in NIACs that take place in the territory of any given State between a NSAG and a third State. If that armed group establishes a court, would it be in breach of the national law of the third State, or that of the territorial State? Determining States’ domestic legislation as the legal basis for the creation of judicial bodies in NIACs therefore entails certain limitations, which makes necessary to look for alternatives.

Armed groups’ courts and the equality of belligerents principle

A broader interpretation based on the principle of equality of belligerents could authorize the existence of armed groups’ courts based on their own regulations. Founded on CA3 and AP II, this principle affirms that all parties to a NIAC have the same rights and obligations irrespective of their causes. This is the essence of IHL when it is asserted that it binds each Party to a NIAC and is intimately connected to the effectiveness of the legal framework. Where the parties are recognized as equal under IHL, there are more chances that an armed group will show willingness to conduct its actions in accordance with the rules of IHL (pp. 1201-1204).

Taking this into account, if the legal basis for States’ judicial bodies in NIACs could be found in their domestic laws, it is submitted that NSAGs should be able to refer to their own ‘legislation’ to justify the establishment of similar bodies. This is suggested by the ICRC in the Commentary of 2016 to CA3 (para 692). Moreover, the ICRC Commentary of 1987 to AP II also affirms “the possible co-existence of two sorts of national legislation, namely, that of the State and that of the insurgents” (para 4605). Finally, the same approach is provided for in the United Kingdom Manual of the Law of Armed Conflict, which considers the word ‘law’ in Article 6(2)(c) of AP II as if it “could also be wide enough to cover ‘laws’ passed by an insurgent authority” (para 15.42, fn 94).

Since both CA3 and AP II create equal obligations upon the parties to NIACs as well as the significance of the principle of equality of belligerents, it seems logical to argue that if States could rely on their own domestic system as a basis for the creation of courts, NSAGs could do the same.

This proposition can also be found in real-world examples and practice of non-state actors. In 1991, the Frente Farabundo Martí para la Liberación Nacional in El Salvador issued a document where it established certain rules for its own penal system (see Principios, Normativos y Medidas Dispuestas por el FMLN en el Transcurso de la Guerra, 1991). The Taliban’s Code of Conduct specifically deals with district and provincial judges. It affirms, among other things, that “[e]ach person responsible in the province should set up a Sharia court at the provincial level, comprising one judge and two prominent theologians who will solve complicated issues at the provincial level which seem to be difficult to solve for theologians and those responsible at the district and village levels”. The Sudan People’s Liberation Army (SPLA) Act (.pdf) provides the basis for the establishment of martial Courts, while the Kurdistan Organization of the Communist Party established back in 1985 regional and central levels of “Komala Revolutionary Courts” to administer justice.

The possibility that all the parties to the conflict may find the grounds for the creation of courts in their own legislation is consistent with the aforementioned principle. The opposing view, based exclusively on States’ domestic legislation, could diminish the legitimacy of IHL as perceived by armed groups. Placing the internal judicial regulation of all the parties to a NIAC in an equal position can only work to enhance the respect for the rule of law.

Challenges to armed groups’ courts

Unfortunately, the position advanced raises some problematic scenarios. At least three can be identified. First, it is not clear that it could be applied in practice to every NSAG. Certainly, their level of organization, and perhaps control over territory are determinative factors (p.489). Hakimi has also recently added that some groups may “lack the institutional, human, and financial resources to set up independent and impartial judiciaries, especially during wartime”. This scenario seems to follow what Sassòli has called a “sliding scale of obligations”: the better organized an armed group is and the more stable control over the territory it has, the more IHL rules would become applicable. One could expect from a highly organized armed group exercising long-term control over a territory, and having developed State-like institutions, including a judiciary, a higher degree of respect for international obligations, including those of fair trials.

Second, nothing prevents armed groups to include within their internal laws certain provisions that could diminish the rights and obligations enshrined in IHL. This could be the case of a provision explicitly precluding the independence of a tribunal, since most likely its members will also be part of the NSAG. In any case, CA3 would still continue to apply regardless, as its rules constitute the minimum standards that protect individuals against any attempt to implement a lower threshold of protection.

Third, although the ICRC has explained that alternative legal basis for NSAGs’ judicial bodies could exist, the 2016 ICRC Commentary to CA3 affirms that nothing in this provision “implies that a State must recognize or give legal effect to the results of a trial or other judicial proceeding conducted by a non-State Party to the conflict. This is consistent with the final paragraph of common Article 3 with respect to the legal status of such parties” (para 695). By seemingly linking the application of judicial guarantees to the legal status of NSAGs, the Commentary seems to have left to States the recognition of any judicial process carried out by these non-state entities, either respectful of the law or not. In consequence, although the effet utile of the rule is linked to different factors, one could simply ask: what would be the purpose of requesting armed groups as parties to NIACs to follow a minimum of judicial guarantees if they could just be left without any legal effect, as if they were not respected at all?

Some concluding ideas

Facing these difficulties, some concluding ideas must be drawn in order to enhance the protection of individuals in the hands of an armed group. If these non-state entities do not reach a level of organization required to create a court (or whatever organ entrusted to that function), a restrictive approach should be adopted, which would admit that NSAGs should not exercise any type of judicial activity and would be forbidden of summary execute individuals, as enshrined in CA3. If, however, the NSAG has a higher degree of organization, a Sassòlian sliding scale of obligations would apply. The latter would allow the NSAG to be bound only by those provisions that it can practically (and realistically) fulfil, and could encourage more organized groups to comply with a legal regime respectful of humanitarian norms.

Ezequiel Heffes holds a LL.M. from the Geneva Academy of International Humanitarian Law and Human Rights and a Law Degree from the University of Buenos Aires School of Law.