Two Fascinating Questions: Are all subjects of a legal order bound by the same customary law and can armed groups exist in the absence of armed conflict? Book Discussion

Armed groups are not very popular entities in today’s world, especially among states which invariably label them as terrorist. That such groups are bound by international humanitarian law (IHL) of non-international armed conflicts is clearly prescribed by Article 3 common to the Geneva Conventions, but this remains difficult for States to digest. Having obligations under the IHL of NIACs does not solve all the problems associated with such groups, because its rules are rudimentary, do not deal with how a territory must be administered and do not even apply to those acts of administration (e.g. in the areas of justice or detention) lacking any nexus to the armed conflict. It is therefore the great merit of Daragh Murray that his book forcefully argues – following in the footsteps of others such as Andrew Clapham, while providing greater detail and some new ideas – that armed groups have human rights obligations and explores what this can mean in practice.

I agree with the aim of the book and with most of the arguments employed. Some will, even in good faith, object to its aim, others will qualify Murray’s arguments as very forceful de lege ferenda, but argue that they go beyond a possible interpretation of lex lata. I find the very varied, often alternative, arguments presented for why armed groups can be subject to international law very nuanced, complete and convincing (with one exception discussed hereafter). The proposed gradated – or sliding scale – approach to the application of Human Rights to armed groups (pp. 172-199), based inter alia upon the classical distinction between obligations to respect, fulfil and protect is equally convincing and Murray’s application of this approach to three selected human rights is both innovative and realistic.

However, the argument provided for why armed groups are bound by existing human rights treaties (although they never accepted them formally) is in my view comparatively short, very absolute and less well-reasoned (pp. 164-169). The author argues that armed groups must be bound by these treaties because individuals subject to their control are endowed with human rights and it is in accordance with the object and purpose of those treaties for armed groups to be bound by them. That it is incompatible with the wording of such treaties is overcome by claiming that the world has changed since international human rights law was born (pp. 157 and 164). Though not a historian, I am doubtful: have the Spanish and Russian civil wars not shown that large parts of populations were already subject 100 years ago to the control of non-state armed groups? Were the Human Rights Covenants not drafted at a time when parts of the populations of the Global South were under control of what were still considered armed groups? If Murray is correct, it is astonishing that all Human Rights treaty bodies have refused to deal with violations by armed groups. If the personal scope of application has to be reinterpreted, why not the provisions on jurisdiction? It is therefore surprising that the otherwise innovative author considers, without any hesitation, that new treaty law would be necessary to establish such jurisdiction (p. 277). Why does he not here too adapt treaty interpretation to new realities and the object and purpose of those living instruments?

Apart from being surprised by his treatment of treaty obligations, I disagree only with one of Murray’s arguments – that customary law by definition binds all subjects of a legal order. In addition, I believe that a lot more discussion would have been necessary on another issue that is both theoretically and practically challenging: whether armed groups also exist in the absence of an armed conflict.

In line with most scholarly writings and certain judicial decisions, the author assumes that customary law binds all subjects of a legal order (pp. 84, 85, 88; slightly more nuanced on p. 104, but without drawing conclusions). He therefore has no doubt that armed groups are – on the issues concerning which they have legal personality – bound by the customary law created by the practice and opinio juris of states. He does not explain why he does not apply a gradated approach in this realm. Such an approach would at least adapt the customary rules to the realities and capacities – and I would add to the practice and opinio juris – of armed groups. Even assuming that States are the only legislators in the international community, I do not understand why the customary law they create – e.g. in the field of human rights – could not be different for different categories of subjects, just as the treaty law of international agreements is different for States (Vienna Convention of 1969) and for agreements involving international organizations (Vienna Convention of 1986). The customary character of a rule simply makes it binding without treaty acceptance, but does not, in my view, affect its personal, material, temporal or geographical scope of application. The opposite view (p. 88) is based upon a dictum of the ICJ which I believe to have been misunderstood. In the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt the ICJ held in para. 37: “International organizations are subjects of international law and, as such, bound by any obligations incumbent upon them under general international law” (my emphasis). In my view, the words highlighted establish a condition which may or may not be fulfilled depending on the rule concerned. They do not, as most assume, suggest that as soon as a rule belongs to customary law it is also incumbent upon international organizations.

Murray assumes that armed groups can exist in and outside non-international armed conflicts (NIACs) and his arguments often distinguish between groups involved in armed conflicts and groups not involved in armed conflicts. I have doubts. First, Murray invokes the extensive jurisprudence concerning organizations whose members can commit crimes against humanity (pp. 67-80). However, does this jurisprudence not simply prove that individual members of an organized group – which in practice has always been an armed group engaged in an armed conflict – may commit crimes against humanity?  Similarly, that courts have analyzed at length the conduct of corporations and concluded that individuals involved in such conduct committed crimes against humanity does, in my view, not yet prove that armed groups have a legal personality outside armed conflicts. Second, Murray does not clarify when a group is “armed” although it is not engaged in an armed conflict. Third, the requirements of organization that an entity must fulfil to qualify as an armed group have thus far exclusively been discussed in relation to IHL of NIACs and they do not make sense absent an armed conflict. Fourth, the only clear basis for a (functional) legal personality of armed groups, Article 3 common to the Geneva Conventions, applies only in NIACs. Fifth, the two main objections to binding armed groups, i.e. the risk of legitimizing them and the risk of absolving States from their obligation to protect human rights on their territories, can be countered in NIACs. Armed conflicts are a reality which must be covered by law. States have accepted this. In NIACs, States have, by definition, lost the ability to effectively protect individuals against human rights violations committed by the group. These counterarguments are much weaker when a State tolerates the fact that an independent group (or a few individuals) is in de facto control of part of its territory without using force to end such control. In my view, if a State allows an armed group to, e.g., detain and prosecute without stopping such practices, if necessary by resorting to the use of force at a level which would bring the IHL of NIACs into application, such a State violates its obligations to protect Human Rights. I must, however, admit that such a Human Rights violation by a State does not necessarily entail that individuals under the de facto control of a group should be deprived of the possibility to invoke their human rights (equally) vis-a-vis that group. In addition, I must admit that Geneva Call, an organization that engages armed groups, lists among the armed groups that have undertaken to comply with humanitarian rules some which are not involved in an armed conflict. However, all of them were arguably at least once in the past parties to a NIAC.

To conclude, it must be stressed that the theoretically important question of whether armed groups can exist without an armed conflict is not of such practical relevance, because States or other armed groups normally engage in armed conflicts against groups with de facto control over territory or persons and most of the examples provided by Murray on pp. 142-144 can also be classified as armed conflicts. In any event, neither this remark nor the others made in this contribution in any way detract from the interest of the book, which I warmly recommend to readers.