Opening the Floodgates, Controlling the Flow: Swedish Court Rules on the Legal Capacity of Armed Groups to Establish Courts

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A Swedish District Court (SD Court) has recently ruled that non-state armed groups have the capacity under international law to establish courts and carry out penal sentences, but only under certain circumstances. While the issue has been widely debated by legal scholars over the past decade (Somer, Sivakumaran, Hakimi), this may very well be the first time that any domestic or international court has made a definitive ruling.

The implications at stake are as clear as the facts of the case. A member of an armed group admits to executing enemy detainees, but argues his actions were lawful as he was carrying out a sentence to punish war criminals as a result of a fair trail of a legitimate (but non-state) court. Notwithstanding the veracity of the claim, does this act amount to summary execution or the execution of justice?

International Humanitarian Law (IHL) prohibits the passing of sentences without fair trail guarantees for acts or omissions related to an armed conflict. For armed groups, this poses two existential challenges to the establishment of criminal courts. First, common article 3 to the Geneva Conventions requires courts to be ‘regularly constituted’. Second, the due process principle of legality (nullum crimen sine lege) requires that criminal offenses be established ‘under the law’.

The SD Court quite remarkably rules that armed group may establish courts in principle, but then seemingly aware of the vast public policy implications of this decision, attempts to rein it in by imposing conditions on armed group trials that seem more attuned to the court’s policy concerns than sound legal reasoning.

On the 1st of May 2012, the defendant, Haisam Sakhanh, joined a Syrian armed opposition faction known as ‘Firqat Suleiman el-muqatila’. Three days later, eleven suspected members of the Syrian regime armed forces were captured. A Free Syrian Army Military Council ordered the release of two and the detention of the other nine. A Judicial Council was then convened. It consisted of three members who had previously served as judges in the regime prior to defecting to the FSA. Sakhanh was not present but heard from others that seven of the alleged perpetrators were found guilty of rape and murder of civilians and sentenced to death under existing Syrian law, while two others were acquitted. Sakhanh was ordered by his commander to carry out the death sentence. He argues that he agreed to do so under his presumption that the order followed the pronouncement of a sentence following a fair trial. Approximately 36 hours had elapsed between the time of capture and the carrying out of the sentence.

The SD Court first determines that the act took place in the context of a non-international armed conflict (NIAC), and then turns to the question of whether an armed group may establish courts. After accepting that the term ‘regularly constituted court’ from common article 3 may give the impression that only a state can establish courts, the SD Court finds that reference to the Additional Protocols and their commentaries indicates that the focus has shifted from how a court is established to whether it upholds fundamental procedural guarantees of impartiality and independence. This view is supported, particularly in the criminal law context, by reference to the Elements of Crime of the International Criminal Court.

The SD Court then rules that since IHL requires armed groups to refrain from inhumane acts such as murder and torture, it also makes demands on them to maintain discipline in their own ranks. Therefore, an armed group must be able to establish courts, but the legal capacity to do so is limited to i) uphold discipline in the actions of its own armed forces and ii) uphold law and order on a given territory under the condition that the court is staffed by personnel who were appointed as judges or officials in the judiciary prior to the outbreak of conflict, AND that the court applies the law which was in effect before the conflict, or at least does not differ substantially in a stricter direction from the law that existed before the conflict. Of course any trial must fulfil due process standards.

One can certainly understand the policy reasons for the SD Court’s decision. Amid a chorus of calls for all parties to conflict to ensure respect for IHL and accountability for war crimes committed within an armed group’s ranks, the SD Court likely did not want to be seen as closing this door to armed group internal accountability. As that door probably looked an awful lot like a floodgate, the SD Court likely felt compelled to manage the flow by imposing strict limitations. First, the ruling maintains the core integrity of the state’s monopoly on justice, and more generally pushes back against an armed group’s effort to gain legitimacy by displacing the state. Second, it mitigates against what one UN independent expert has called “a veneer of legality to what would better be termed vigilantism”. Third, it reduces the chances that unqualified or partial judges will be appointed. Fourth, it ensures that populations will not be subjected to partisan laws, or for example religious laws that deviate from the state’s legal foundations (although the tables could be turned in a conflict where a theocratic state faces secular opposition). Finally, it ensures that populations will not find themselves under two competing sets of law with which it is impossible to comply—for example, if an armed group imposes conscription, to refuse would run contrary to rebel law, while to comply would run foul of government law prohibiting insurrection.

Yet there are also compelling policy considerations against such existential limitations to armed group courts. First and foremost, it will be difficult for those engaging armed groups to sell this outcome. The state apparatus can capture and try rebel fighters for war crimes or even for merely participating in hostilities (as PoW status does not exist in NIAC), but armed group ‘authorities’ will be considered international war criminals if they do the same. And armed groups are often reluctant to apply the rules of their enemy, especially if the conflict is ideologically based. Second, the capacity of an armed group to administer justice depends on the somewhat arbitrary factor of whether it has access to regime judges (rather than whether judges are independent, impartial and competent). It may also put judges in harms way, as rogue regimes may prefer to see judges indisposed of rather than legitimizing opposition courts. Third, the assumption is that the state penal laws respects and protects human rights, which is often not the case and may be a root of the conflict (see Hungary statement below). Imagine if women are not protected from all forms of sexual violence under the law of the state? Fourth, the international community has called on armed groups to bring perpetrators of international crimes to justice (p. 5). In theory there are other options for armed groups such as handing over suspects to 3rd states, but in practice it is rare to find any takers. Fourth, armed group fighters accused by their own courts should be entitled to the same level of due process protection as others (par. 547). To rule that they may face sanction by a court from which others are immune is to diminish their protection before the law.

From a legal standpoint, the SD Court’s analysis was a mixed bag. It did well in ruling that the archaic ‘regularly constituted court’ requirement of common article 3 has been replaced by the ‘independent and impartial’ criteria.

However, on the issue of an armed group’s capacity to enact laws, the judgment seems to be derived from an erroneous—or at least incomplete—consideration of the term ‘law’ in the context of NIAC. The SD Court reasoned that, “it clearly follows from [the international customary law of legality] that it is only states, which in accordance with their respective constitutional rules, may impose criminal sanctions” (par. 30, my translation). This assertion may be true under human rights law in times of peace, where the state is the only game in town, but it does not hold up in the IHL of NIAC, where competing authority is the name of the game, and where the meaning of ‘law’ is all but clear. The ICRC commentaries to common article 3 (par. 692) and Additional Protocol II (par. 4605) contemplate the possibility of parallel state and armed group laws. In his seminal work on the law of NIAC (p. 561), Sivakumaran identifies the UK, Hungary and the USSR (arguably) as states that accept ‘law’ to also include armed group law. Hungary, lending credence to the policy argument against the SD Court ruling above, has stated that armed group law “may be more in harmony with the demands of the time and more humanitarian than the laws in force at the beginning of the conflict”.

Another problematic aspect of the judgment is that the SD Court provides no justification for the requirement that judges must have been part of the state apparatus prior to the outbreak of hostilities.

The decision also has implications for the legal basis of detention in NIAC in light of recent jurisprudence. Surely it would be absurd if armed groups are granted the legal capacity to hold trials under certain circumstances but lack a legal basis to detain.

The SD Court should be commended for taking up the challenge head on. It could have simply ruled that due process cannot be achieved in 36 hours and ignored the existential issue of whether an armed group can establish courts (interestingly, in the case at hand, it seems that the armed group court allegedly meets the existential requirements as it purports to be composed of judges who defected and who applied Syrian law). The fact that there is now a decision for other domestic and international courts to consider and legal scholars to debate is commendable.

An alternative approach could be to use an analogy to the law of occupation as a starting point. According to articles 64-67 of the 4th Geneva Convention, an occupying power: i) is barred from promulgating new laws other than to comply with IHL (and arguably human rights standards), to maintain orderly government, or to ensure the security of the occupying power; ii) may establish courts to consider the penal provisions it enacted; and iii) must uphold the principle of legality by publicising new laws in the language of the inhabitants and not applying them retroactively. Of course there are many reasons to argue that armed group control of territory is not analogous to occupation by another state. Still, a substantive discussion on such questions should be welcomed.

In an ideal world, armed groups would not exist and would not establish courts. But armed conflict is the antithesis of an ideal world. If legal norms are to have a chance of mitigating the harm of armed conflict, they must be non-prejudicial and realistic. Currently, an expert process established through the University of Manchester International Law Centre and the Syrian Legal Development Programme is working to develop guidelines for fair trial standards of armed group courts. While not a legal exercise, the aim is to provide practical guidance for armed groups and those engaging with them. This is good strategy even for those who prefer not to see a proliferation of armed group courts. The more armed groups are aware of the sophisticated processes they must have in place, the harder it will be for them to claim their own sub-par courts as fair. The SD Court judgment, which looks to be heading to appeal, makes the need for such an initiative all the more clear.

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Seun Bakare says

March 10, 2017

Taking the debate further, I think the other question that arises would be 'what is the place of this kind of trials by armed groups, vis-a-vis the provisions of article 17 of the ICC?' In other words, can prosecution before the 'courts'of an armed group be a bar to subsequent prosecution before the ICC, within the context of Article 20(3) on ne bis in idem principle?
Put differently, can the complementarity framework of the ICC avail prosecution for crimes by 'courts' of an armed group, so as to make the case inadmissible before the ICC as per article 17(1)(a) read in conjunction with article 20(3) of the Rome Statute?

Njiti Batty says

March 11, 2017

This is an interesting article Somer,well done for the " EYE OPENER" on what is going on in Swedish Legal Regime. It is clear and indisputable that Non-Armed Groups are recognised under international law and are Freedom Fighters depending on the case to case: The good examples being the Nationalist Armed groups that fought for independence during colonial regimes. My concern is that the legal regime regardless of a state's or government's fragility is a complex and sophisticated legal system: Despite the fact that the armed groups are subject of international law, it is good to highlight that their status differ from that of the states and governments. In the normal trend under domestic law by basing on the 'principle of checks and balance'; three state organs such as the law enforcers (government-decision makers, policy makers, police machinery carrying out investigations, Prison sections Attorney General's Chamber & Director of Public Prosecutions-depending on the system etc); the law makers (parliaments with its organs) and the Judicature/Judiciary work together. I imagine the difficulties the armed groups may face despite the reality that they may apply the already made or existing laws as pointed out above such as IHL; there are a lot of mines which need to be filled with sand and soil unless the 'hands of administration will not meet' i.e justice shouldn't only be done but be seen to be done [otherwise no fair trial -an emphasis is added to the already stated]. Firstly, How is the procedure of establishing the legal machinery. What about the tenure of judicial personnel working for armed groups. As already pointed out for the issue of detention or imprisonment of the convicted and sentenced criminals, do they have prisons or will they enter into the memorandum of understanding that the antagonistic state detain such a person or the the state hosting them since sometimes they are mobile will imprison such a criminal. What happens when the convicted person receives amnesty from the state? Who investigates? If at all the international criminal tribunals such as the ICC, ICTY, to mention a few faced and still face practical difficulties as to investigations, what about armed groups who are above all being hunted by the state which owns the respective machinery. What happens when there is a conflict between the governance of the armed groups can't one be sacrificed? Indeed this a novel and an interesting 'food of thought'.

Jordan Paust says

March 11, 2017

Insurgents do not commit war crimes by merely fighting govt troops. They are not combatants and have no combatant immunity. Therefore, their conduct might be prosecutable under relevant domestic law.
Otherwise an apt and interesting post.
ICCPR art. 14 also requires the possibility of appeal. And art. 5, coupled with H.R. Comm. general comments, allows recognition of private duties of groups and individuals.
In the US, the S. Ct. decision in Hamdan addressed GC 3, regularly constituted, and minimum due process guarantees under customary international law mirrored in the ICCPR and GP.

Gabor Rona says

March 11, 2017

Jonathan, do you have a copy of the court's decision? Do you know what statute the defendant was charged under? What was the jurisdictional predicate? Universal or because the accused was a Swedish national?

As to whether armed groups can establish tribunals, one important consideration is the principle of equality of the parties to armed conflict under IHL.

Recognizing the controversy over NIAC detention powers, you said "Surely it would be absurd if armed groups are granted the legal capacity to hold trials under certain circumstances but lack a legal basis to detain." But the power of the state to detain is not controversial when the detention is pursuant to domestic law, be it a criminal or administrative detention. I submit that if an armed group is presumed to have the power to conduct trials (and therefore, to detain), it can only be because the state has a like power under domestic law. In that event, there's no absurdity.

Jonathan Somer says

March 12, 2017

Thanks for your comments.

Seun, a good line of speculation. And interesting to compare 17(1)(a), which references ‘States’ in terms of an investigation or prosecution, with 17(1)(c), which does not in terms of a trial. I imagine the drafters of the Rome Statute were not contemplating non-state courts and therefore did not consider these implications, but a plain reading could (note I only raise the possibility and assuming the relevant standards are met) result in an interpretation where ICC jurisdiction is not barred prior to a verdict by an armed group, but is barred once an armed group trial is concluded.

Njiti, thanks for your food of thought and zeroing in on some of the policy implications.

Jordan, we agree. Its not a question as to whether insurgents commit war crimes by merely taking up arms, but rather whether insurgents would--like states--be able to prosecute the enemy fighters under ‘domestic’ legislation for doing the same.

Veronika Bilkova says

March 12, 2017

Many thanks, Jonathan, for this well-written post and for drawing our attention to a case which, though extremely interesting, would probably escape the attention of most of us otherwise.
I share your doubts about the wisdom of requiring that the process take place under the Criminal Code of the country and be led by the "official" judges. Especially in countries, where armed opposition groups exercise effective control of an important portion of territory for a longer period of time, this requirement might not be fully convincing (and in line with the principle of the equality of parties to the conflict). Yet, as you right point out, there might good reasons to have this requirement as a general rule.
Turning to the practical side of the case: Mr Sakhanh has been sentenced to life imprisonment. It is my understanding that the Swedish Court has found that the process in Syria had not met all the requirements of Article 3 - so it could be qualified as a war crime (also Article 8/2/c/iv of the Rome Statute), right?
What do you think the outcome of the case would be, if the Swedish Court concluded that the process in Syria had met all these requirements? Would the person be acquitted? Would he be prosecuted for common crimes (murder)? Would Swedish courts have jurisdiction to prosecute a common crime committed by a foreign citizen in a foreign country? I know, these questions are mostly speculative but it would be very interesting to know your opinion.
Thanks once again for the post!

Jonathan Somer says

March 13, 2017

Thanks Gabor and Veronika for your comments and questions. I’ll start by saying that I am not familiar with Swedish criminal law, so I will respond to what I can with a fair bit of speculation, and for the rest, invite anyone out there who is more familiar to chime in.

The charges were laid as breach of international law under 22(6) of a version of the penal code prior to July 2014 (this seems to be an non-enumerated provision—think ICTY statute—while the new Code if I understand contains an enumerated list to implement Rome), and alternatively murder under section 3(1) of the penal code. The judgment does not refer to personal jurisdiction, so if contentious, I imagine it had already been decided as a preliminary matter. It seems to be a case of universal jurisdiction.

Veronika, yes, as per above, the violation was found of CA3 as prohibited generally by the Swedish code. Very interesting question re murder. Just like a fighter is not protected from domestic prosecution for mere participation in hostilities, he would presumably not be protected domestically for carrying out a sentence of a court. How would another country (eg Sweden) act if it has jurisdiction? And what if the process were essential to discharging command responsibility duties to prevent or repress (on this see the latest from Clapham at p19

Gabor, as you well know, the equality of belligerents principle becomes complicated when dealing with issues such as legal authority due to the apples and oranges nature of states/armed groups. Should we understand your suggestion to mean that if states can resort to a domestic legal basis for detention in NIAC, then armed groups may also find such basis in their own ‘domestic’ provisions?