2018 Report on the Administration of Justice by Armed Non-State Actors

Geneva Call is a neutral and impartial humanitarian organization aiming at promoting respect, by Armed Non-State Actors (ANSAs), for international humanitarian norms, thereby enhancing their compliance with their obligations under international law.  

In September 2018, Geneva Call issued a Report based upon the second edition of the Garance Talks. The meeting was held in 2017 and brought together ANSAs and experts from academia and various NGOs, to discuss the current challenges faced by ANSAs in the administration of justice. The core sessions of the 2017 Garance Talks addressed three related issues: i) the legal basis for the establishment of courts and judicial processes by ANSAs and in territories controlled by them; ii) deprivation of liberty by ANSAs, including the treatment of detainees; and iii) the procedural safeguards, rights and protection of detainees.

The administration of justice by armed groups is a frequent feature in armed conflicts. Practice shows that ANSAs often try their own forces, enemies and civilians. Obviously, the condition is that, when exercising this prerogative, they respect certain judicial guarantees. Notwithstanding this practice, however,  the legal basis for the establishment of such judicial mechanisms still remains unclear.

Common Article 3 to the Four Geneva Conventions of 1949 (CA3), which applies to non-international armed conflicts (NIACs), affirms that the passing of sentences and the carrying out of executions without previous judgements pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized people is prohibited with respect to persons taking no active part in hostilities. Additional Protocol II of 1977 (APII) then develops and supplements CA3, by establishing certain fundamental fair trial guarantees, such as the obligation to inform without delay, the principle of the individual criminal responsibility, the principle of legality, the presumption of innocence and privilege against self-incrimination.

Within this legal framework, some have interpreted the concept of “regularly constituted court” as only referring to a judicial mechanism established in accordance with the constitutional laws of the State. Accepting this interpretation would, however, mean recognizing that IHL does not allow armed groups to set up a parallel judicial system, completely separate from that of the State, with all the limitations that this view would bring (for instance, conflicts only fought between NSAGs would not be covered).

In this respect, the present Report proposes an alternative reading, based on the principle of equality of belligerents. According to this view, while the administration of justice is a governmental function par excellence, it is contended that, in the context of NIAC, international humanitarian law (IHL) creates equal obligations upon States and ANSAs. It follows that armed groups, like State actors, are granted the possibility to install judicial mechanisms based on their own regulations.

Unfortunately, the position just advanced raises some problematic scenarios. Many of these ANSAs, in particular those with a lower level of organization, have less potential to guarantee an administration of justice in accordance with international standards. Some authors have explained that this is due to the fact that they devote a large amount of their resources to their military, but it could also come as a consequence of their lack of knowledge of these safeguards. Moreover, according to their level of organization, ANSAs might not have a proper civil authority to ensure due processes or specific agencies prepared to carry out law enforcement operations.

Some conclusions can be drawn from the 2017 Garance Talks: first, when an ANSA does not have the capacity to respect the above mentioned safeguards, it shall not carry out judicial processes and alternative mechanisms should be sought; second, when the structure of the group varies and it is not stable, it will only carry out judicial processes as long as it has the capacity to do so; third, when the group has the capacity to carry out judicial processes in accordance with those fair trial guarantees recognized by international law, then everything feasible shall be done to respect them in full.

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