Depoliticizing rebels: Government use of civilian trials during armed conflict

Abstract

During armed conflict, incumbents predominantly use military courts to prosecute enemy combatants. However, in some cases, incumbents employ domestic civilian trials. Engaging the civilian judiciary to prosecute rebels is puzzling. Military courts offer unique benefits during armed conflict. For instance, the incumbent's military personnel conduct proceedings, potentially mitigating some of the ambiguity over processes and outcomes inherent in using civilian courts. Under what conditions do incumbents turn to civilian courts during armed conflict? We argue that incumbents are more likely to prosecute rebels through civilian courts when rebels engage in criminal activities that resemble core governance functions, such as taxation. In these cases, incumbents take on the uncertainty of civilian trials when rebels present a governance threat and when rebels commit crimes which offer the threat and opportunity to depoliticize and portray them as mere criminals through civilian courts. We find support for our argument using dyadic data on rebel and incumbent behavior during armed conflict (1990–2010). This study takes a first step at understanding why and how incumbents use civilian courts during armed conflict while building on our understanding of the interplay between war, criminality, and governance.