Editorial note

We are very pleased to announce that the book under review has won the 2023 American Society of International Law’s Certificate of Merit for a Preeminent Contribution to Creative Scholarship. In 2022, it received the International Society of Public Law’s Book Prize.

According to the International Committee of the Red Cross (ICRC), no less than sixty-four million civilians were living under the exclusive control of armed groups in 2022.Footnote ¹ In these areas, armed groups are called upon to resolve disputes, impose penal sanctions, and implement other social controls, including within their own ranks. To do so, they frequently establish courts or other judicial mechanisms.Footnote ² Yet, for a long time, the legal framework applicable to the administration of justice by armed groups remained understudied. René Provost’s new book, Rebel Courts, fills this gap.

What is unique about this work is that Provost combines legal analysis with field research and empirical data. Moreover, the book centres around four case studies of armed groups: (1) the Fuerzas Armadas Revolucionarias de Colombia; (2) the Islamic State (Daesh) and the Taliban; (3) the Liberation Tigers of Tamil Eelam; and (4) the Autonomous Administration of North and East Syria and other Kurdish factions. Each chapter begins with a detailed description of the judicial system operated by one of these groups, highlighting the plurality of approaches towards the administration of justice and the different levels of institutional sophistication that they have achieved. While the four case studies do not always seem to have a connection to the specific legal problems discussed in the respective chapters, they nevertheless provide a fascinating insight into what “rebel courts” look like in practice.

In Chapter 1, Provost begins his analysis with an inquiry into whether the administration of justice by armed groups could ever be grounded in what is commonly understood as the “rule of law.” Most lawyers will think of the rule of law as a concept that is somehow inherently linked to the institution of the state and its monopoly on the use of force. Indeed, we intuitively perceive the capacity to administer justice as an expression of sovereigntyFootnote ³, which is, ideally, accompanied by some form of democratic legitimacy. Providing an in-depth historical account of the concept of the “rule of law,” Provost demonstrates that this line of thinking is misguided and that the link between the rule of law and state authorities is a comparatively young development. Adopting a pluralist approach to the administration of justice, Provost thus concludes that trials and judicial procedures by armed groups as an element of rebel governance can be carried out, in principle, in ways that comply with our contemporary understanding of the rule of law.

In Chapter 2, Provost then moves on to examining the criteria and legal constraints imposed by international law upon both state and non-state actors during armed conflict for the carrying out of trials and the imposition of penal sentences. He focuses on Common Article 3 to the 1949 Geneva Conventions, which prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”Footnote ⁴ Provost concludes that the requirement of a “regularly constituted court” should be understood as the “need for deliberate consideration by an established authority to constitute a court of general jurisdiction that will apply ‘law’ broadly defined.”Footnote ⁵ In this regard — correctly in my viewFootnote ⁶ — Provost rejects the position taken by other authors that the term “regularly constituted” can be equated with the requirements of independence and impartiality.Footnote ⁷ Moreover, he makes a convincing case that the notion of “law” in this context is broad enough to cover the armed groups’ own “legislation.”

What I found particularly interesting is Provost’s conclusion that it is necessary for armed groups to use penal sanctions to comply with their obligations under international humanitarian law (IHL). Relying on the ICRC’s customary IHL study, Provost argues that the application to armed groups of the customary law obligation to “ensure respect” for IHL “implies a disciplinary regime to sanction violations, which in turn demands a process that meets the requirements of fundamental justice.”Footnote ⁸ This proposition has far-reaching implications as it would mean that international law not only allows for armed groups to undermine the judicial monopoly of the state but actively requires them to do so under certain circumstances.

I believe there are reasons to challenge Provost’s conclusion in this regard. First, very few examples of state practice surveyed by the ICRC actually invoke a duty by armed groups to “ensure respect” for IHL, as compared to merely calling for compliance by the group. This lack of evidence in relation to the application of the “ensure respect” limb to armed groups was criticized shortly after the study had been published.Footnote ⁹ I therefore found it surprising that Provost seems to take the ICRC’s conclusion for granted, especially since he is rather critical of other customary rules identified by the ICRC’s study.Footnote ¹⁰ Second, even assuming that armed groups are indeed under an obligation to “ensure respect” for IHL, the author does not explain why such respect can only be achieved through penal sanctions as opposed to disciplinary or administrative measures that do not require a judicial procedure meeting the indispensable guarantees required by Common Article 3.Footnote ¹¹ I therefore think the question of when (if at all) the capacity to pass penal sentences translates into a duty to do so would have deserved a more in-depth treatment.

In Chapter 3, Provost then looks at specific due process guarantees that international law requires from trials held during armed conflicts, using Article 6 of Additional Protocol II, Article 75(4) of Additional Protocol I — both of the 1949 Geneva Conventions — as well as Article 14(1) of the International Covenant on Civil and Political Rights as a reference point.Footnote ¹² Unsurprisingly, the application of these standards to the conduct of trials by a non-state actor during armed conflict involves certain challenges, for example, in relation to the structural independence a rebel court is expected to demonstrate vis-à-vis the armed group’s military and political leadership. Here, Provost convincingly suggests that the most adequate comparator should be the standards that we apply to state-operated military courts, where the dividing line between judiciary and executive authorities is not always absolute.

Another interesting but also controversial discussion in this chapter relates to the question of whether there are any limits to an armed group’s legislative activity in relation to criminal law and penal sanctions. Provost concludes that armed groups may criminalize acts that endanger the group’s security (such as espionage or sabotage) but not the act of engaging in hostilities against the armed group as part of the government or other enemy forces.Footnote ¹³ In this regard, Provost does not shy away from challenging the principle of belligerent equality and its application to non-international armed conflict [NIAC]) and instead advocates for holding insurgents and government authorities to distinct legal obligations.Footnote ¹⁴

Finally, Chapter 4 addresses the formal legal recognition of armed group courts and their decisions within the domestic judicial system of states before international courts and by other armed groups. In this chapter, Provost explains, inter alia, how the complementarity regime of the Rome Statute of the International Criminal Court Footnote ¹⁵ or the so-called “Namibia exception” recognized by the ICJFootnote ¹⁶ could be interpreted to give some form of legal effect to judicial proceedings by armed groups. Drawing upon an impressive amount of case law and state practice, he concludes that the obligations imposed upon both state and non-state actors “suggest the ineluctability of engagement with, and in some cases recognition of, the rebel administration of justice.”Footnote ¹⁷

In summary, Rebel Courts is an incredibly comprehensive and thought-provoking read. While I do not agree with some of the conclusions made, I am nevertheless certain that this book will serve as the reference work for any future legal assessment of the administration of justice by armed groups. Indeed, Rebel Courts is an impressive piece of work and a much-needed addition to the so far under-studied topic of rebel governance.