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Home Posts tagged "non-state armed groups"

The Ituri Conundrum: Qualifying Conflicts between an Occupying Power and an Autonomous Non-State Actor

Published on July 15, 2019        Author: 
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Last week, Trial Chamber VI of the International Criminal Court (ICC) issued the long-awaited judgment in the Ntaganda case. The judges found the defendant guilty on all 18 counts, including the ICC’s first ever conviction for sexual slavery. Although the Chamber is yet to resolve matters related to sentencing and reparations, the decision marks an important milestone in the proceedings, which began with an arrest warrant issued back in August 2006 (Mr Ntaganda surrendered himself to the ICC in March 2013).

Readers of this blog will be familiar with the case as well as with some of the controversies surrounding its progress. In brief, Bosco Ntaganda was the Deputy Chief of Staff of the Patriotic Forces for the Liberation of Congo (FPLC), the armed wing of the Union of Congolese Patriots (UPC). The UPC/FPLC was one of the armed groups involved in the so-called Ituri conflict, which took place between 1999 and 2003 in the Ituri region in the north-eastern Democratic Republic of the Congo (DRC). Before the ICC, Mr Ntaganda was charged with 13 counts of war crimes and five counts of crimes against humanity, all allegedly committed in Ituri between 2002 and 2003.

The judgment, which fills over 500 pages, no doubt deserves careful scrutiny before any general pronouncements can be made as to its overall quality and rigour. Instead of analysing the judgment as a whole, this post focuses on a narrow question related to the Chamber’s legal qualification of the conflict in Ituri at the material time (discussed in paras 699–730 of the judgment). In particular, I am going to look at how international humanitarian law (IHL) qualifies conflicts between an occupying power and an autonomous non-State actor. The analysis builds on my research into complex conflict situations, which was published as part of my recent book on Internationalized Armed Conflicts in International Law (OUP 2018, especially chapter 3).

The situation in Ituri between 2002 and 2003 was notoriously convoluted, Read the rest of this entry…

 

The Limits of the Law: Putting Reparations into Practice

Published on July 2, 2019        Author: , , and
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Reparations have recently been the hot topic from its invocation at the US Congress, the Khashoggi killing to WWII claims by Poland and Greece against Germany. Reparations have a particular legal meaning that intends to acknowledge wrongdoing and remedy as far as possible victims’ harm. Private law notions of restitution heavily imbue the concept. Indeed, the seminal case of Chorzów Factory by the Permanent Court of Justice laid the foundations for reparation in international law which ‘must, as far, as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.’

In the past three decades we have seen an increase in reparation programmes from the German Compensation Scheme for Forced Labour, the UN Claims Commission, domestic reparation programmes such as Peru to jurisprudential strides of the Inter-American Court of Human Rights and the initial steps by the International Criminal Court. 2020 itself will mark fifteen years since the UN adoption of the Basic Principles for the Right to Remedy and Reparations for Gross Violations of Human Rights and Serious Breaches of International Humanitarian Law that sets the broad international standards for victims and states.

Despite these developments most victims of such violations do not receive reparations. Read the rest of this entry…

 

The Al-Werfalli Arrest Warrant: Denial of Fair Trial as an Additional Allegation and a Hint at a Possible Defence

Published on August 23, 2017        Author: 
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Last week, the International Criminal Court (ICC) issued an arrest warrant in the Libya Situation against Mahmoud Al-Werfalli. The arrest warrant alleges that Al-Werfalli is criminally responsible for the war crime of Murder, in a non-international armed conflict, pursuant to Article 8(2)(c)(i) of the Rome Statute, in relation to the alleged summary execution of 33 persons. Based on the facts laid out in the arrest warrant, the ICC Office of the Prosecutor (OTP) could also have alleged that Al-Werfalli is criminally responsible for the war crime of “sentencing or executing without due process” (“denial of fair trial”) pursuant to Article 8(2)(c)(iv) of the Rome Statute. This choice would be novel in modern international criminal law practice. However, it has been done in other jurisdictions (See J. DePiazza, “Denial of Fair Trial as an International Crime — Precedent for Pleading and Proving it under the Rome Statute” 15 Journal of International Criminal Justice (2017)). Another interesting element of the arrest warrant is that it hints at a possible defence to any eventual charge of murder or denial of fair trial – mistake of fact.

According to the arrest warrant, Al-Werfalli is a Commander in the Al-Saiqa Brigade, an elite unit reported to comprise 5,000 soldiers. In May 2014, the Brigade joined “Operation Dignity”, with other armed elements, for the reported purpose of fighting terrorist groups in Benghazi. The operation continued until at least 18 March 2017. In this context, the arrest warrant alleges that, in seven separate incidents, 33 persons who were either civilians or persons hors de combat, were detained and then executed. It is alleged that they were either executed personally by Al-Werfalli or on his orders. The arrest warrant further alleges that “[t]here is no information in the evidence to show that they have been afforded a trial by a legitimate court, whether military or otherwise” (Arrest Warrant, para. 10). Read the rest of this entry…

 

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

Published on March 10, 2017        Author: 
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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. Read the rest of this entry…