Editor’s Note: This article is part of the Armed Groups and International Law Symposium, building on the volume edited by Katharine Fortin and Ezequiel Heffes.
Since the 17th century, lawyers and institutions have recognized States as the ultimate legal and legislative authorities within their respective territories. This hierarchization has had significant implications on our perceptions of the status and activities of other entities. This is evident in the proliferation and endorsement of various theories that not only describe, but also uphold and perpetuate, this status quo. This has led to a collective assumption that the existence of States fosters order while their absence would bring chaos.
For the almost 64 million people living in areas fully under the control of armed groups, this perspective creates tensions where both certainties and uncertainties co-exist. In many settings, armed groups function as de facto authorities, imposing “rebel laws” that enable individuals to carry on with their lives – often oblivious to the fact that their governing authority is not a sovereign State. Yet, at the same time, their members and the people within these regions remain subject to the legal framework of the officially recognized State. Certainly, this situation can vary depending on the specific conflict. However, the idea that areas under the control of armed groups are solely characterized by chaos and disorder does not accurately depict empirical reality.
In this regard, obtaining a baseline understanding of the legislative activities of armed groups in conflict settings can help various goals, such as identifying their ideologies and motivations and elucidating the tensions that exist between the authority they exercise over territories and individuals and an international system that has traditionally excluded them. This is a landscape that has placed non-State actors at its periphery and armed groups at the margins of this periphery.
Rebel Laws Through the Lens of Legal Pluralism
When examining the legislative activities of armed groups, it is imperative to reconsider the traditional understanding of what constitutes “domestic” or “internal law” and whether their enactment falls exclusively within the purview of States due to their domestic (or internal) sovereignty. The Inter-American Court of Human Rights has put forward a traditional perspective: For a document to be considered as a law, the court declared it should be “directed towards the general welfare” and adopted by “a democratically elected legislature and promulgated by the Executive Branch” of a State (para. 35). Of course, we know that this is not the case for every State and that this interpretation is restricted to the application of the American Convention on Human Rights. Yet, the Court’s definition of law automatically excludes the possibility of armed groups making anything that comes close to “law.”
Nonetheless, lawyers and anthropologists have delved into the examination of norms existing in non-State entities since the late 1960s and early 1970s, with Indigenous communities often serving as an example. This inquiry has been framed under the heading of “legal pluralism,” according to which law may be defined as “whatever people identify and treat through social practices as ‘law’“ (at 313). Based on this understanding, certain authors have adopted this approach to comprehend the normative activities of armed groups. René Provost, for instance, has underscored the relevance of legal pluralism as these entities’ “norms and practices do not derive any legitimacy from the state, quite the opposite, but also because in many if not most civil wars the official law of the state will cohabit with norms established” by armed groups (at 12). In his view, these laws and regulations appear as “legal pluralism incarnate” (at 12). Similarly, Swenson has classified armed groups’ efforts as a manifestation of “combative legal pluralism,” wherein both State and non-State legal systems coexist but maintain hostilities toward each other (at 443). Swenson suggests that both frameworks aim to “undermine, discredit, supplant, and–ideally–destroy the other” (at 443). It is important to note, however, that not all armed groups engage in conflict against the territorial State. Likewise, not every law established by these non-State entities will necessarily be confrontational or in opposition to those adopted by State governments, as will be shown below. Nonetheless, their simultaneous existence remains uncontested.
Rebel Laws: Some Examples
Numerous instances of these types of endeavors by armed groups can be found. For example, in Nepal, the Communist Party of Nepal-Maoist established its own comprehensive public legal code during wartime and transitional periods which encompassed both civil and penal provisions (at 681). Similarly, the Sudan People’s Liberation Movement/Army (SPLM/A) devised a set of laws and regulations to govern the territories under its control. While it initially focused on military regulations, the SPLM/A eventually extended its governance to include civilian administration. Furthermore, most armed groups around the world have also developed internal military codes to regulate the conduct and actions of their own fighters, thus creating a “parallel legal framework for those individuals to the one of the State” (at 197).
In some cases, armed groups have utilized or modified the existing laws of the governing State indicating that their normative efforts are not always confrontational toward those authorities. For instance, in Sri Lanka, the Liberation Tigers of Tamil Eelam established the Tamil Eelam Penal and Civil codes, drawing from a combination of Sri Lankan, Indian, and British legal frameworks. These codes were supplemented by customary practices rooted in the group’s interpretation of Tamil cultural rules (known as “thesavalami”) which addressed matters such as inheritance, marriage, and other civil issues (at 117).
Similarly, the National Transitional Council of Libya has relied on the Libyan Criminal Code while the “Charter” adopted by the Autonomous Administration of North and East Syria stipulates that Syrian criminal legislation applies unless it contradicts the principles outlined in that same Charter.
The possibility of an armed group adapting rules already applicable in territory it controls was also examined by the Stockholm District Court in the 2017 Sakhanh case when dealing with activities related to the administration of justice. In brief, the Tribunal found that armed groups could legally establish a court if it applied “the law that existed before the outbreak of the conflict, or at least not laws that differ considerably in stricter direction from the legislation that existed before the outbreak of the conflict” (para 31). Although the District Court would note later that “it is only states in accordance with their respective constitutional rules that may impose criminal law” (para 30), it did not reject the possibility that armed groups could establish their own legal framework.
A Typology of Rebel Laws
There are three types of “rebel” legal frameworks that can usually be observed when examining armed groups’ activities. These co-exist with those of territorial States: (i) armed groups’ codes of conduct and internal orders that address and regulate the behavior of their members; (ii) the “legislation” adopted by armed groups to govern the daily lives of individuals residing under their control; and (iii) agreements entered into with other actors containing norms dictating the behavior of armed groups’ members and individuals under their control.
Regarding armed groups’ codes of conduct and internal orders, akin to military manuals utilized by States, these non-State entities frequently adopt such documents to manage various facets of their own forces including matters of discipline. Consequently, these norms typically govern the behavior of their members and outline appropriate conduct in specific circumstances. These documents may also encompass details regarding the military hierarchy of the respective group and its political objectives and activities. Codes of conduct and other internal regulations of armed groups may not solely rely on rules of international law (in particular of international humanitarian law, or IHL), but also integrate other frameworks, such as religious ones. The FARC-EP, for instance, noted in its “Estatuto” (Statute) that this document “essentially formulate[d] the ideological foundations of the [NSAG], define[d] its organizational structure, the command regime, the duties and rights of combatants and other basic principles of the revolutionary organization” (at 5-6, translated by author).
In addition to their codes of conduct, “just as [S]tates enact legislation, so too do armed groups” (at 467). Indeed, as was mentioned above, many groups — particularly those that exert control over territory and function as de facto authorities — have established laws (including comprehensive penal codes) which are applicable to the inhabitants of those regions. The existence of armed groups’ own legislation in parallel to those of States in non-international armed conflicts (NIACs) was even recognized during the Diplomatic Conferences that led to the adoption of the 1977 Additional Protocols to the Geneva Conventions (at 202-203).
Finally, agreements concluded between armed groups and other actors, including States, can also serve as relevant sources for regulating the activities of non-State entities. These agreements may take the form of signed documents, joint declarations, or any other written form through which the parties openly commit to adhere to a set of rules. A clear example can be found in the special agreements envisaged in Common Article 3 to the 1949 Geneva Conventions under which parties to non-international armed conflicts (NIAC) may agree to bring into force other provisions of these treaties.
Importantly, these three sources should not be seen as mutually exclusive but as complementary. An armed group may adopt an internal order following the conclusion of an agreement with an international organization. Similarly, they can adapt or change their legislation for the same reasons.
Concluding Ideas
Why is it relevant to examine armed groups’ law-taking, law-making, or law-adapting activities? There are (at least) two reasons that justify this study. First, certain organizations have attempted to engage with armed groups to increase the protection of individuals in conflict settings. When undertaking such activities, some of these organizations have promoted the adoption and implementation of “rebel laws” to ensure compliance with international law. For example, in 2015, the ICRC published a thematic report on health care and armed groups, based on consultations with 36 groups from 10 contexts. The report concludes with a “model unilateral declaration” for armed groups to adopt, which includes some of their IHL obligations in this area. The 1992 Agreement on the application of IHL between the parties to the conflict in Bosnia-Herzegovina was concluded at the invitation of the ICRC. Geneva Call also supports armed groups “in the drafting and implementation” of unilateral declarations. This organization recognizes the importance of armed groups’ internal rules and regulations, which can range “from codes of conduct, standing orders, and military manuals to internal organizational documents, penal codes and decrees or legislation.” As a result, an examination of the existing strategies to increase the protection of individuals in armed conflict will necessarily also entail an assessment of armed groups’ laws and regulations.
The second reason can be found in the content of some IHL rules, which require all parties to NIACs, including armed groups, to provide a legal authority to prevent their violations. For example, the prohibition of arbitrary deprivation of liberty implies that certain forms of detention by armed groups will not be arbitrary in nature. Accordingly, the ICRC recently recognized that armed groups can adopt laws sanctioning criminal law detention “provided this law is in compliance with international law” (at 59) and that actors doing so “provide grounds and procedures for internment in rules that are considered binding by all members” (at 55). Of course, arguments will be (and have been) put forward to deny the relevance of armed groups’ laws, as this could legitimize their goals, which often contradict those of States. At the same time, it is essential to understand and emphasize that the resulting legitimation pertains to the actor as a holder of obligations under international law, rather than to their goals and actions.