Towards international human rights law applied to armed groups

Abstract

This lecture explores the place of justice, accountability and remedies in the global agenda against terror, illustrated by a case study on Iraq and the Islamic State in Iraq and the Levant (ISIL.) The two international regimes traditionally applicable to the acts of armed groups, including “terrorist groups”, are international criminal law and international humanitarian law. The lecture argues that they carry each strong limitations, such as those related to the ‘‘armed conflict’’ nexus requirement. This lecture shows that a third regime, international counter-terrorism, has developed over the last two decades and become the de facto legal regime for armed non-State actors. This regime has displaced and weakened international humanitarian and criminal law while further eroding victims’ protection and accountability. The lecture further suggests that all three legal frameworks fail to capture the nature of control exercised by armed groups such as ISIL, and the extent of their functions, including those amounting to governance. The lecture argues that such functions can best be apprehended through international human rights law (IHRL). Tracing armed groups’ human rights obligations and legal personality to treaty and customary law, the lecture concludes with proposals to hold armed groups accountable under IHRL as well as possible approaches to strengthen accountability for crimes committed by ISIL.

Annual SIM Peter Baehr Lecture, 14 September 2018 ¹ Introduction

I think it is fair to say that real or perceived fears over national security have largely driven the political agenda both nationally and internationally throughout the twenty-first century. Such fears have taken on a renewed dimension in recent years – as revealed by the many denunciations of foreign interference in elections and concerns over cyber security, to name a few recent characteristics of the security agenda. In the world of the 21st century, the national security agenda is largely dominated by “terrorism,” and “terrorist groups,” countering them and preventing their ideology of violent extremism to take hold of people’s minds. These are some of the concerns that have defined an all-encompassing domestic and international agenda.

My purpose today is to address the place of justice, accountability and remedies in this global agenda against terror. Rather than tackling these questions in the abstract, I will consider them against the backdrop of one reality I have explored and researched, that of Iraq and of one “terrorist” group, the so-called Islamic State in Iraq and the Levant (ISIL) ² . Through this inquiry I wish to highlight what the response to “terrorist groups” and in particular what the legal framing of these groups reveal about international law and what a victim-centered accountability regime for crimes committed by these groups may require. I propose to develop the following intertwined arguments.

The first line of inquiry and argumentation is related to the legitimacy and effectiveness of the counter-terrorism legal framework to frame groups such as ISIL and their crimes. The position I wish to defend goes as follow:

A group such as ISIL can both be an “organised armed group” for the purposes of International Humanitarian Law (IHL) or International Criminal Law (ICL) as well as a “terrorist” group for the purposes of domestic law or international, UN Security Council resolutions and listing. This is true as well for individual members of such groups. ³

ISIL is an “organised armed group” according to the criteria developed under IHL and ICL relating to territorial control, command structure, and military strategy. As such, ISIL is bound by international customary humanitarian law.

In situations such as Iraq, there is sufficient evidence to suggest that the crimes committed by ISIL may meet the threshold of war crimes, crimes against humanity and genocide. This has been recognised by the international community through United Nations Security Council Resolution 2379 mandating an international team to support Iraq in investigating the aforementioned crimes perpetrated by ISIL.

In practice, however, and to this day, ISIL crimes have been tried in Iraq under the 2005 Iraqi Law on Anti-Terrorism. Neither IHL, nor ICL have played a role in these trials.

The Iraq example reflects broader global trends, characterised by the development of an international counter-terrorism regime ⁴ , emerging as the de facto legal regime for armed non-State actors ⁵ , including armed groups but also criminal ones ⁶ and weakening normative pillars of international criminal, human rights and humanitarian law.

The second line of inquiry and argumentation is related to the limitations of ICL and IHL in terms of capturing the realities of groups such as ISIL.

• 6. Studies on ISIL demonstrate that the group exercised a range of “governance” functions on the territories they held (close to 40% of the total territory of Iraq at some stage), from raising taxes to policing and quasi-judicial functions. These functions, and the human rights violations that have accompanied their implementation, are not captured by IHL and ICL.

• 7. As far as groups such as ISIL are concerned, the sole reliance on IHL and ICL also presents other limitations in terms of identifying, naming and prosecuting a number of their crimes, because, among other restrictions, of the “armed conflict” nexus requirement.

• 8. These issues point to the need of complementing ICL and IHL with another legal regime – that of international human rights law – to capture the space- and time-sensitive obligations of a group such as ISIL and ensure better and more effective accountability.

• 9. In conclusion of this speech, I will make a range of recommendations to address the normative limitations revealed by the ISIL case study as well as possible approaches to strengthen accountability for crimes committed by ISIL.

Of “Terrorism” and “Terrorist” groups

Our news feed, television or computer screens are all too often flooded with stories of massacres, suicide bombings or abductions targeting civilians – religious minorities, schools for girls, protesters, people going about their daily business – cutting lives short through a brutal act of terror. The victims over the last few two decades can be counted in hundreds of thousands. ⁷ The individuals or groups claiming responsibility for such acts are seemingly taking great pride in the horror they are inflicting on the civilians from Afghanistan to Iraq, and from France to Nigeria.

There is no agreed international definition of a “terrorist group” or of “terrorism”, although there is loose consensus on the idea that “terrorism” entails acts that either cause death or injury to persons or damage to property, combined with a specific intent to intimidate a population. ⁸ I think we can agree that such acts do not apply to armed non-State actors only. A number of States come to mind when it comes to the systemic and systematic use of terror – Cambodia under the Pol Pot regime, North Korea and Syria, to name a few. Yet, in todays’ world, acts of “terrorism” are largely seen as the sole attributes of armed non-State actors while the legal vacuum over what constitutes “terrorism” has made it all too easy for governments and leaders to misuse and abuse the global consensus over the need to combat “terrorism”. ⁹

The current understanding of, and approach to “terrorism”, makes another problematic assumption: that the use of “terror” is an end in itself and that “terrorist” groups like ISIL present no other characteristics.

Acts of “Terror” in Iraq

Over the last 15 years, Iraq has experienced a series of violent conflicts along political and sectarian lines and involving foreign countries and their troops. They include the 1980-1988 war with the Islamic Republic of Iran, the 1990 invasion of Kuwait, the Saddam Hussein regime and its overthrow by the United States-led invasion of 2003, followed by increasingly sectarian conflicts. While this keynote address focuses on the last conflict, opposing the Iraqi Government to ISIL, this is not meant to deny continuity, influences and overlap between and across these conflicts. It is, arguably, too complex an issue for the purpose of this key note address. Neither will it focus or elaborate on the trans-national character of ISIL, although this is clearly an important characteristic of the organisation.

ISIL waged war on Iraq from 2013 until its official defeat in December 2017. ¹⁰ It carried out a sustained and deliberate policy of executing civilians as a method of instilling fear, exerting control, taking revenge and governing their territories. It committed mass killings of civilians as part of its combat strategy, including by using them as human shields during fighting. The estimated civilian casualties in Iraq include about 40,000 killed and 75,000 injured from November 2012 to December 2017, ¹¹ the majority of which are attributed to ISIL. Some 202 mass graves sites have been discovered so far in areas previously under its control ¹² . Estimates regarding the number of victims buried in these sites range from 6,000 to 12,000 ¹³ while the number of missing persons run from a 250,000 to one million people, the result of decades of conflict and human rights abuses. ¹⁴ There are reports that ISIL may have employed weaponised chemical agents (chlorine and mustard gas) during attacks in and around Mosul.

ISIS created an extensive, hierarchical “court” system, ¹⁵ which tried and sentenced civilians. ¹⁶ The group ran detention facilities managed by various entities: the Islamic police, the military police, the morality police, raid squads, and security forces. ¹⁷ Each entity had its own conditions and methods of detention and punishment, including torture. ¹⁸ ISIL imposed strict gender rules for social behaviour for both women and men, torturing and killing those they deemed not in conformity with those rules, including those alleged to be LGBT.

It is fair to say that for many people around the world, acts of unspeakable violence define ISIL and groups like it, and a political agenda seemingly based on spreading and inspiring sheer terror; terror of the minds and the bodies.

Governance and control

At the height of its power, ISIL seized close to 40% of the territory of Iraq. It proclaimed itself a caliphate with exclusive theological and political authority over the world’s Muslims and saw itself as ‘an all-encompassing entity, one that eventually is meant to shoulder all the responsibilities of traditional state’. ¹⁹ ISIL fighters included not only Iraqis but also foreign fighters, estimated at one point at 5,000, including nationals of Australia, Belgium, France, Germany, Jordan, Libya, the Netherlands, the Russian Federation, Tunisia and the United Kingdom of Great Britain and Northern Ireland. Available evidence indicates that these foreign fighters, some of whom held senior positions in the ISIL hierarchy, have been closely involved in the many crimes committed against the Iraqi people. ²⁰

As studies after studies have shown, ²¹ ISIL ran day-to-day operations of the territories and their populations under its control, including by raising taxes, issuing birth certificates and officialising marriages, policing the streets, imprisoning, judging and sentencing through its court systems, along with mediating over petty disputes.

This reality of ISIL control over territories and populations is one they share with many armed groups (whether called “terrorist” or not), which engage in the promulgation of rules and in their implementation, including through dispute-resolution mechanisms and quasi-law-enforcement functions. ²²

Empirical evidence shows that the ability of armed groups to establish and maintain their “control” is largely grounded on their capacities to “outperform” the State ²³ and to establish and impose their own governance systems, building on old grievances against the State, the population’s needs for some semblance of regulations, as well as force and fear.

Bridging the two realities

While public policy discourse and public opinion have largely reduced “terrorism” to acts of unspeakable violence justified by the radical, “extremist”, ideology of armed groups, history and the experiences of the twenty first century should tell us otherwise, and demand more sophisticated analyses, taking into account the multiple dimensions of these groups, including that of “governance”.

Yet, I will suggest that we have no appropriate legal framework that gives meaning to this (at least) ²⁴ dual reality and allows us to make sense of it.

The international legal framework for armed groups: the state of affairs ²⁵

How to hold, ISIL and groups like them accountable? Which are the agreed, meaningful, international legal norms, to name and frame these groups and their crimes? Is this framing sufficient, appropriate, and effective, including in terms of delivering protection and accountability?

The first limitation we encounter in our search for a legal frame is that international human rights law has somehow been ruled out. Armed groups, including “terrorist” groups cannot be said to have human rights obligations.

This is because the international human rights regime has been traditionally conceived as state-centric, excluding any other actors. At the heart of this approach is an understanding of human rights and human rights law, which places the spotlight on State obligations. Attributing obligations to non-State actors would thus misrepresent the historical significance of human rights law. ²⁶ Governments are also concerned that attributing human rights obligations to such actors would “legitimise” them, domestically and internationally.

State responsibility to protect

Instead, human rights experts have argued that the most effective approach to alleviating human rights violations is the theory that ‘governments should discharge their responsibilities’ to protect their people. ²⁷ Under the “Responsibility to Protect”, we do not name the crimes committed by the armed group. Instead, the focus is placed on the State’s responsibilities to act with due diligence to effectively prevent acts of violence by these groups, protect individuals and populations against them, and bring perpetrators to account.

Such a framework may be helpful in terms of providing victims with access to reparations to the extent that the State is ultimately the actor being held accountable. But as analysed elsewhere, ²⁸ it presents many limitations. It is less than satisfactory in terms of naming the actors ultimately responsible for what may constitute massive violations of human rights, including the right to life. It does not apply to context of non-international armed conflicts, such as that in Iraq. It is questionable whether it can be effectively used in context of endemic, so-called low level, violence.

Instead, three legal frameworks are usually put forward:

International humanitarian law (IHL);

International criminal law (ICL); and,

International counter-terrorism framework.

International Humanitarian Law (IHL)

IHL is possibly the most important framework to frame the nature and extent of responsibilities of groups like ISIL vis-à-vis civilians, under Common Article 3 (CA3) of the Geneva Convention and other international customary humanitarian law norms. Armed groups are bound by them provided they have a sufficient level of organisation ²⁹ . Their legal personality is thus connected to their level of organisation and control of territory or people, and exists along a nexus. ³⁰ In the context of recognised non-international armed conflicts, “armed groups” may be defined as parties to an armed conflict, provided they fulfil some conditions, namely that they are i) under a responsible command, ii) exercise such control over a part of its territory as to iii) enable them to carry out sustained and concerted military operations. ³¹ The International Criminal Tribunal for the former Yugoslavia (ICTY) Trial Chamber found that an “organized armed group” should follow characteristics related to command structure, territorial control, as well as the ability to define a unified military strategy and use military tactics, and to speak with one voice and negotiate and conclude agreements such as cease-fire or peace accords. ³²

While IHL constitutes an important framework for armed groups, it presents some limitations. ³³ First, States parties to a conflict remain bound by IHRL, unlike armed groups whose obligations are limited to CA3 and customary IHL. This situation creates an inequality of obligations between parties and protection gaps for populations. Second, the application of IHL requires a “nexus” to the conflict, ³⁴ thus excluding areas under the control of armed groups, where a certain “peace” or normality exists, and activities that are distinct from confrontations with an enemy combatant, such as administration. ³⁵ Another obvious limitation is that not all armed or terrorist groups are involved in what qualifies as armed conflicts. There are situations, characterised by massive loss of lives at the hands of armed groups where IHL is not applicable. I have in mind so-called “low intensity” conflicts, including those involving organised criminal cartels. ³⁶

Conceptually, the definition of organisation and control under IHL is very specific to a military context and understanding of what these groups do. These indicators are mostly framed in military-like terms. These, however, are not capturing the “governance” functions performed by these armed groups, particularly away from the front line. Yet, such functions have huge implications in terms of the protection afforded (or not) to the populations under the control of these groups, and thus to future accountability. These “governance” functions also denote a level of capacities from which claims for international human rights protection can be derived and upon which such protection can be grounded.

International criminal law

ISIL and other armed groups’ individual members may be held accountable, under ICL, for war crimes, crimes against humanity or indeed genocide, which may be prosecuted by the International Criminal Court (ICC), ad hoc tribunals and national courts in States that have domesticated these crimes. The ICC issued arrests warrants against members of armed groups in Uganda, Democratic Republic of the Congo and Central African Republic. In September 2017, the UN Security Council adopted Resolution 2379, which establishes an independent investigative team to support Iraqi efforts to hold ISIL accountable under ICL. ³⁷

As explained elsewhere, these initiatives are welcomed but present a range of limitations which will just be listed here: i) The ICC referral process is complex and lengthy and ends up legitimising a selection of perpetrators, at the expense of the States; ii) there is no evident jurisdiction over Armed Groups as “collective entities”; ³⁸ and, iii) not all crimes committed by such groups meet the required ICL evidentiary threshold. Should we then not have alternative legal norms to frame what is happening in these territories, including crimes?

Access to remedies

A crucial limitation, with both IHL and ICL as applied to armed groups, is regarding access to remedies and reparations, which is particularly difficult under both bodies of law. The Basic Principles and Guidelines on the Right to a Remedy and Reparations ³⁹ apply to all human rights and IHL violations provided these have been perpetrated by State actors. ⁴⁰ In practice, State compliance with the duty has been a recurring difficulty. CA3 of the Geneva Conventions or Additional Protocol II do not mention any kind of reparation, ‘and there have been virtually no instances where armed opposition groups have undertaken to make reparations for violation of IHL or have made such reparations in practice’. ⁴¹ The right to reparation is limited to a State’s omission to protect individuals from violence by an armed group. ⁴² ICL does not provide for individual reparations. Further, States that domesticate the Rome Statute of the ICC do not undertake to establish judicial remedies for individual reparations.

Conclusion

Therefore, there is an international legal framework to name and frame armed groups’ obligations provided these groups are part of an armed conflict or provided they have committed crimes against humanity. Their obligations under the Geneva Conventions are largely limited to their military conduct and do not encompass what they may do as part of their non-military governance. Other than these scenarios, we have to rely on the State’s duty to protect.

What about counter-terrorism law, the all-powerful new international legal regime that has developed at the speed of light? To determine whether it constitutes a reliable and effective alternative, let’s return to Iraq where ISIL was defeated, officially, in December 2017.

International accountability through counter-terrorism

The Iraqi anti-terrorism law no.13 of 2005

Since the official defeat of ISIS in December 2017, the Government of Iraq has embarked on a large judicial endeavour to hold ISIL fighters and members accountable, primarily using the Anti-Terrorism Law No. 13 of 2005. The application of the law raises a range of issues.

First, the law itself is both vague and overly broad. It encompasses serious and petty crimes, ranging from killings to vandalism. The list of crimes for which the death penalty is not only applicable but also mandatory is extensive and includes acts whose gravity falls way below intentional killings. For instance, ISIL membership may be a sufficient offence to carry out the death penalty. Up to 6,000 alleged ISIL members are reportedly sentenced to death, some 200 have already been executed to date.

Those currently detained, tried and sentenced to death in Iraq include so-called “foreign fighters”. To the best of my knowledge, no governments of the foreign fighters’ countries of citizenship have sought assurance against the use of death penalty or demanded that they be tried by their countries of citizenship or that they serve their sentence in their countries of citizenship. While Iraq may indeed have, in theory, the most legitimate jurisdictional claims over ISIL fighters’ crimes, reasonable questions can be raised regarding their capacities to do so in conformity with international standards regarding fair trials.

Indeed, and second, as many observers have repeatedly denounced, trials against ISIL fighters are largely failing to meet such standards. There are allegations that confessions are extracted under torture, while trials are conducted on a collective basis. The most common charge is that of membership to a “terrorist” organisation, as opposed to more serious crimes, such as killings. In addition, access to legal representation from the moment of arrest is not guaranteed, along with the right to have arrest and detention status reviewed by an independent and competent judge in a timely manner. ⁴³

Third, victims of ISIL have been largely absent from the investigations, and the legal and judicial proceedings. ⁴⁴ And, fourth, and more generally, the post-conflict judicial and accountability process in Iraq raises a fundamental question: is counter-terrorism the appropriate legal framework in Iraq and elsewhere to prosecute the crimes perpetrated by ISIL?

Anti-Terrorism Law: An Appropriate Legal Framework for ISIL?

The Iraqi government has argued that military actions from 2014 to 2018 were solely national in character, for the purpose to combat “terrorism” and that the “terrorist” groups have no legal status under international law. ⁴⁵ Evidence belies such claims, as shown in the first part of this key note address.

Further, ISIL crimes perpetrated in Iraq (and elsewhere) cannot be seriously and adequately addressed through the Iraqi counter-terrorism law, which was not designed to respond to the nature and scale of the crimes committed in Iraq. In fact, both the Government and the international community have agreed that the 2005 Iraqi counter-terrorism law and associated practices are not up to the task. The UN Security Council adopted Resolution 2379 in 2017, which mandates an international Investigative Team to support the Iraqi authorities in collecting evidence pertaining to acts committed by ISIL that may amount to war crimes, crimes against humanity and genocide and prosecuting those responsible. ⁴⁶

Iraq has therefore committed itself to prosecuting international crimes, and the international community has committed itself to supporting such efforts. In practice, however, Iraqi courts do not have jurisdiction over the crimes of genocide, war crimes or crimes against humanity committed within its territory. This would require for the Iraq Parliament to amend domestic legislation and the penal code to ensure jurisdiction over international crimes. The authorities have said that Iraq is preparing a draft law on international crimes applicable to crimes committed by ISIL terrorist groups during its period of control over areas in Iraq. The UN Assistance Mission for Iraq has also submitted another draft law for the purpose of establishing a Specialized Tribunal, which will try such crimes.

By the end of 2018, such proposals have not been debated by the newly elected Iraqi Parliament, let alone adopted. Iraqi judges therefore still do not have jurisdiction over ISIL international crimes.

The search for international accountability

The current legal and political hiatus has two major implications as far as accountability is concerned. The first implication concerns the victims of ISIL crimes and their families. In Iraq, the place and experiences of victims in the judicial accountability process is ad hoc and limited, and there is, to date, limited evidence of victims of “terrorism” being heard and presenting evidence, let alone accessing remedies and reparations. ⁴⁷

The second implication is that we are left right now with an official judicial process, which characterises as “terrorism” (and most of the time membership to a “terrorist” organisation) crimes that, based on existing evidence, amount to war crimes, crimes against humanity or genocide, and indeed, massive violations of human rights. That the counter-terrorism framework continues to be relied upon to try ISIL crimes in Iraq, and that the international community continues to give it legitimacy constitutes, in my opinion, a fallacy of historical proportion, as well as a violation of the right to justice, the right to know, and the right to participate. The Iraqi government, and the Governments of all countries associated directly or indirectly with the conflict of the last five years, owe ISIL victims more than just a nod.

Notwithstanding some limited national efforts ⁴⁸ , the unsatisfactory Resolution 2373 and the international Investigative Team, and in spite of years of denunciations, claims and resolutions – the international community has to date failed to initiate the establishment of proper international legitimate mechanisms to try crimes committed by ISIL in Iraq and elsewhere.

Some of the most cruel, troubling, and traumatising global episodes of the beginning of the twenty-first century have yet to be the objects of serious, objective, impartial, professional investigations, and to be treated on par with atrocity crimes perpetrated in our collective History and in other parts of the world.

Naming, framing and responding: towards an international human rights regime for armed groups

Counter-Terrorism: a new international legal regime for armed groups?

There is absolutely no doubt that the last two decades have witnessed the creation of a sizable body of new norms, amounting to the establishment of a counter-terrorism regime as highlighted by Fionnuala Ní Aoláin, the current UN Special Rapporteur on the protection of human rights and fundamental freedoms while countering terrorism. ⁴⁹

International counter-terrorism law has become, in my view, the default international legal regime for armed groups, whether or not these are operating in recognised international or non-international armed conflicts. ⁵⁰

There is also little doubt that this new regime has led to a weakening of international human rights and humanitarian law guarantees, while its medium or long-term impact on acts of terror, “terrorist” organisations and their root causes is, at best, questionable.

Counter-terrorism efforts have been shown to result in multiple human rights violations, such as those related to the use of torture, fair trials, detention, extrajudicial executions, and so on. ⁵¹ The internationally sanctioned counter-terrorism regime ⁵² has also resulted in the criminalisation of legitimate activities, including those related to humanitarian assistance and medical care. ⁵³ The UN Security Council has added individuals and organisations to sanctions lists based on their provision of medical services and supplies. ⁵⁴ The outcome is a de facto re-writing of international humanitarian norms, such as those related to the humanity of the enemy. ⁵⁵

The counter-terrorism regime has largely failed to take into account the right of victims. For instance, the UN Global Counter-Terrorism Strategy includes five references to victims, which demand of States that they put in place, on a voluntary basis, national systems of assistance for victims of terrorism. ⁵⁶ Former Special Rapporteur on human rights protection and fundamental freedoms while countering terrorism, Ben Emmerson, insisted that the protection of the rights of the victims constitutes a genuine legal duty modeled on the aforementioned Basic Principles and Guidelines on the Right to a Remedy and Reparations. ⁵⁷ To this day, such a legal obligation has rarely been implemented. It would appear that the counter-terrorism framework remains essentially conceived and perceived as addressing crimes against the State.

As I wrote in my October 2018 report to the United Nations General Assembly: ‘There is a sense of the international counter-terrorism regime increasingly going out of international legal control, its tentacles seemingly reaching every facet of national and international life.’ ⁵⁸

Addressing violations by armed groups: ensuring accountability

We do not need an international counter-terrorism regime for armed groups. What is needed is applying international law to armed groups, including international criminal and humanitarian law, complemented by international human rights law. This demands normative steps along with the political will to provide accountability for the crimes committed by ISIL.

At a normative level, these steps may be summarised as follow. ⁵⁹ First, the attribution of human rights responsibilities to armed groups demands acknowledging that armed groups have legal personality. As demonstrated by those who have engaged thoroughly with the topic, ⁶⁰ the legal personality of armed groups is not as extensive as that of States but sufficient to imply obligations under international law and treaties. ⁶¹ The legal personality of armed groups exists ‘along a spectrum’. ⁶² It is tied to their functionality on the international sphere and fluctuates over time. Different sources of legal personality imply different obligations.

Second, some of these obligations are best defined with reference to international human rights law. I have already highlighted above the limitations of the ICL and IHL framework applied to armed groups and the “governance” functions of the vast majority of armed groups. Altogether these point to the need to come up with a legal framework that takes these functions into account and give them legal meaning to ensure or strengthen protection of the populations under their control. The advantages of doing so outweigh the risks or inconveniences. Attributing certain human rights obligations to armed groups does not nullify but complement the State’s responsibility to protect. ⁶³ Furthermore, there is no evidence that the application of IHL or ICL to armed groups has resulted into their legitimisation, or that it has limited governments’ right to respond to armed conflicts, rebellions or violence using all lawful means. ⁶⁴

Third, understanding the nature and scale of armed groups’ human rights responsibilities, requires understanding the nature and extent of their governance functions and how these may be performed. I have recommended that a coherent taxonomy of armed groups should be developed, one that will include indicators to assess (territorial) control and governance, alongside the indicators already established by ICL and IHL. In turn, these would provide a stronger basis for assessing these groups’ capacities to hold human rights obligations.

Fourth, a new soft law instrument is needed, for the purpose of human rights protection on the ground. There are initiatives such as the Geneva Call “Deed of Commitments for Adherence to a Total ban on Anti-Personnel Mines” which armed groups are encouraged to sign and implement, and which constitutes an ‘effective model of procedural accountability’. ⁶⁵ Another initiative, the 1990 Declaration on Minimum Humanitarian Standards, seeks to address gaps regarding armed groups as well. Building on such initiatives, a new instrument could be developed, outlining “Principles and guidelines on human rights and humanitarian standards protection, implementation, and dissemination”. ⁶⁶ Armed groups could be encouraged to adopt it and implement it. Such an instrument will be initially enforced through self-monitoring and self-reporting, in addition to monitoring by an external impartial body. ⁶⁷

Fifth, we need to identify and establish appropriate mechanisms and bodies to hold armed groups accountable. There are existing instruments that must be assessed, tried out and/or strengthened, such as referral to the ICC along with the establishment of ad hoc international tribunals or hybrid ones. Under Chapter VII, the UN Security Council has imposed sanctions, including travel bans and asset freezes, which ought to be evaluated in terms of their human rights impact with the view of refining them to ensure an effective and targeted effect on the leadership of armed groups, one that does not further victimise their victims. Some Treaties’ provisions could also be more systematically assessed as far as armed groups are concerned. For instance, the UN Working Group on Enforced or Involuntary Disappearances, the UN Committee on the Rights of the Child or the UN Committee on the Rights of Persons with Disabilities may be able to assess some violations of the Treaties by armed groups. It may be possible to set up experimental or ad hoc institutions evaluating the obligations and violations of such groups, including with reference to proposed soft law instruments. Transitional Justice Processes are particularly appropriate to identify, explore and implement new tools and mechanisms for accountability, and remedies. Truth and Peace and Reconciliation Commissions could be tailored to address the collective responsibility of armed groups, and ensure that victims have a legal right to reparation. ⁶⁸ In addition to providing individual remedies, the goal should also be to advance societies’ or communities’ reckoning with the past and public acknowledgment of harm inflicted on victims. ⁶⁹ Armed groups leadership should provide public apologies, and contribute to national memorials and commemoration ceremonies. ⁷⁰

Sixth, the UN and Member States concerned with the weakening of international public law should move away from the language of “terrorism” which is routinely abused by governments around the world. So-called “terrorist” groups are armed groups or parties to a conflict, which uses terror as one of their modus operandi. Such language, derived from IHL and ICL, will go a long way towards ensuring the centrality of recognised international legal regimes in international policy-making and global governance of peace and security.

Seventh, as far as accountability for ISIL crimes is concerned, a range of approaches may be recommended which are meant to complement one another:

1. It is essential that Iraq domesticates international criminal law through an act of Parliament, allowing Iraqi prosecutors and judges to try ISIL members for crimes against humanity, war crimes or genocide, with the assistance of the international Investigative Team, as per Resolution 2379 and the Terms of Reference of the international Investigative Team agreed in February 2018. This legal reform could involve the establishment of ad hoc or hybrid tribunals to support ISIL trials.

2. Alleged ISIL fighters (so-called foreign fighters) who are nationals of countries whose domestic law has incorporated international crimes could be prosecuted and tried by the Courts of their countries, following extradition from Iraq.

3. Countries whose domestic laws have incorporated universal jurisdiction should prosecute and try alleged ISIL members residing on their territories, who are responsible for international crimes and human rights violations.

4. The ICC should assume jurisdiction over alleged ISIS fighters who are nationals of State Parties to the Rome Statute whenever the tests of complementarity and gravity are met (Article 17 of the Rome Statute). ⁷¹

I fully recognise that each of these recommended approaches presents difficulties, of a legal (for example, question of jurisdiction), technical (for instance, conducting an effective investigation across national jurisdictions and related to an armed conflict), and political (such as, reluctance to extradite so-called foreign fighters) nature. To be effectively addressed, they require international cooperation and agreement over the various responsibilities, and shared understanding of what is at stake.

Conclusion

The conflict in Iraq and the unfolding post-conflict legal developments seem to further embed the notion of an international counter-terrorism regime becoming the de facto regime for framing the status and crimes of armed groups. On the one hand, such developments have occurred in spite of the applicability of IHL and ICL to ISIL or other armed groups operating around the world. Such developments have also taken place against evidence pointing to massive human rights violations committed by ISIL in the territories upon which they exercised control.

On the other hand, international human rights law to date has no appropriate language for armed groups (short of insisting on the responsibility of governments to protect), while IHL is at its weakest when it comes to non-international armed conflicts, despite the many developments of the last two decades. The legal framework currently in place has resulted in a protection vacuum and massive accountability deficits for civilians in countries and territories affected by armed groups and conflicts, whether these qualify as non-international armed conflicts or not. The international counter-terrorism regime is not the response to these problems. In fact, evidence to date suggests it has exacerbated many existing problems. The best option, in my opinion, consists in re-affirming the centrality of international humanitarian and criminal law, while expanding international human rights obligations to armed groups.