Introduction
More than ever before, large numbers of civilians live for extended periods in areas affected by non-international armed conflict (NIAC); of the forty-nine active conflicts in 2016, only two were inter-State, while the rest were armed conflicts within States.Footnote 1 Conflicts are also increasingly protracted in duration.Footnote 2 Populations living in insurgent contexts, out of the effective reach of any de jure authority, are covered only by the limited set of provisions regulating NIAC (common Article 3 to the Geneva Conventions, and Additional Protocol II to the Geneva Conventions (AP II)Footnote 3); as a result, understanding the legal basis and regulation of governance functions exercised by insurgent groups in control of territory has become increasingly urgent and relevant.
Birth registration is one of the casualties of thwarted access to justice experienced by populations in areas controlled by insurgent groups. The infant inhabitants in these territories risk disappearing into a legal black hole, as the territorial State can claim that it has lost effective control over those territories, and other States supporting the insurgent groups may deny (or may truly lack) decisive influence, yet the insurgent administration is typically not recognized by States as an authority for the human rights obligation of registration at birth.
Birth registration is a human right enshrined in the International Covenant on Civil and Political Rights (ICCPR)Footnote 4 and the United Nations (UN) Convention on the Rights of the Child (CRC),Footnote 5 but it is also a practical necessity, as it is often a precondition for exercising other rights. In other words, without proof of a child's name and age, it is not possible to obtain travel documents, to enrol in school or even to register for humanitarian aid, including family reunification, and social protection entitlements. The impact of lacking identity documents can be devastating and irreparable. In Rwanda, despite years of State efforts including photo and radio tracing in cooperation with the International Committee of the Red Cross (ICRC), in 2001, without birth documents, 3,500 unaccompanied children remained unidentified.Footnote 6 In Sierra Leone, many children rescued from forced recruitment could not remember their birth names; due to lack of documentation, the identity of those children was never restored.Footnote 7 In Iraq, due to only possessing insurgent birth certificates, families were not able to receive medical care, food rations or school enrolment for their children.Footnote 8
The precise number of unregistered children in insurgent areas is unknown because these children are invisible in respect of the law. They are vulnerable to being trafficked, smuggled or forced into underage armed recruitment since they do not possess a valid legal identity for the purpose of prevention or rehabilitation.Footnote 9 Nonetheless, the number of affected children is clearly substantial, in the tens of thousands in the past decade alone. Quilliam and the Romeo Dallaire Child Soldiers Initiative estimated that by March 2016 there were 31,000 pregnant women living under the Islamic State (IS) group, who only had access to IS birth certificates.Footnote 10 According to media reports, in the insurgent-controlled area of Donetsk region in eastern Ukraine, in 2017 alone more than 12,000 infants were born and issued birth certificates by the insurgent group in control of the area.Footnote 11
International human rights law (IHRL) and international humanitarian law (IHL) in international armed conflict (IAC) have dedicated provisions defining the content of the right to identity registration from birth.Footnote 12 However, there is no black-letter regulation of birth registration by insurgent groups, and this vacuum has attracted little attention from human rights treaty bodies, the only bodies with a mandate to monitor the right to legal identity. For example, in Iraq, due to insurgent control of territory by Al-Qaeda from 2004 to 2009, and IS from 2014 to 2017, thousands of children did not have access to State-run birth registration systems, a concern highlighted by civil society groups and by duty bearers.Footnote 13 The situation of these children was not mentioned by any of the six treaty body Concluding Observations issued on Iraq in 2015.Footnote 14 CRC observations on birth registration in Iraq focused only on barriers faced by children belonging to minority groups.Footnote 15 The Committee for the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict mentioned the weak Iraqi birth registration system as a serious concern for age verification in armed recruitment, but no mention was made of insurgent-issued identity documents.Footnote 16
Significant academic attention has been devoted to practices of insurgent groups and the possible content of their duties or powers under human rights and humanitarian law,Footnote 17 but in these treatments, insurgent birth registration has languished in obscurity.Footnote 18 This article will examine the considerable but largely overlooked body of practice of insurgent groups in registering the identity of children from birth. Insurgent or armed opposition groups, as defined in Article 1(1) of AP II, are “dissident armed forces … which, under responsible command, exercise [stable] control over … territory”; this article will use the terms “insurgents” and “insurgent groups” interchangeably throughout to reference the concept of a group meeting the AP II criteria.Footnote 19 The main characteristics of these groups for the purposes of this article are organization, effective control of a population and territory, political opposition to the government of the territorial State, and independent existence (i.e. not a de facto organ of another State).Footnote 20 Groups which do not exercise effective control over territory and do not have an organizational apparatus will not be addressed in this analysis, which focuses, as defined in Article 1(1) of AP II, on groups which have the capacity to “implement this Protocol”.
States are required under all circumstances to ensure the right to recognition as a person under the law, a non-derogable right. In peacetime, States are obligated under IHRL to register births in order to fulfil that right for infants. In armed conflict, States may derogate from the obligation to register births under the derogation regime of Article 4 of the ICCPR, which allows them to temporarily derogate from their full obligations in regard to certain rights only if the “life of the nation” is threatened and only to the extent and for the duration which is absolutely necessary.Footnote 21 However, they will still be bound under IHL provisions to register births in domestic territories under their control whenever materially possible, in order to fulfil the non-derogable right to recognition under the law. This article will argue that in domestic territories not under State control, the obligation to ensure recognition under the law should take the form of an obligation to recognize insurgent-issued birth documents. This article will argue that insurgent groups have the inherent power to register births, in order to “take all appropriate steps” to protect children under Article 4(3) of AP II, human rights devolved on the local population, and international customary law. This article will first review existing insurgent practice of birth registration, demonstrating that many insurgent groups can and do register births, though these registrations are not recognized by States. Second, it will survey relevant IHRL and IHL provisions related to birth registration and identification of children in armed conflict in order to clarify these obligations. Lastly, the article will describe a possible legal basis for recognition of insurgent birth registration and address some common objections to State recognition.
Birth registration in practice
Insurgents’ practice related to birth registration
A number of insurgent groups with effective control of populations are registering births taking place in their territories. IS issued birth certificates, recording the baby's weight, length and date of birth, and stamping the document with the seal of the “Caliphate”.Footnote 22 Surveys of insurgent groups who engage in humanitarian action have uncovered goals ranging from winning the favour of the local population to demonstrating stability, increasing their legitimacy and facilitating the smooth running of the local administration;Footnote 23 engaging in administration of territory is likely to have similar motives. Some insurgent groups have formed mutual agreements to recognize one another's official documents, seeking recognition from the outside world.Footnote 24 Insurgent civil documentation issuance practices are not well understood, due to the limited access of journalists and non-governmental organizations (NGOs) to insurgent-controlled areas. Nevertheless, a few trends can be identified.
The number of affected individuals is not inconsequential. Syrians in 91% of sub-districts inside Syria report that loss or lack of identity documents is one of their top three protection needs; the 2015 humanitarian situation overview by the Office of the UN High Commissioner for Refugees (UNHCR) found that less than half of the population in most areas of Syria are able to obtain documents.Footnote 25 A review of court records in 2017 indicated that just 38% of the reportedly 14,000 children born in the first two years of the “Luhansk People's Republic” in eastern Ukraine have completed the procedure to be registered by the government of Ukraine.Footnote 26 The difficulties faced by these children can last for years after territorial control has been restored. According to the Iraqi Parliamentary Committee on Human Rights, among children born during 2004 and 2009, when Al-Qaeda controlled territory in Iraq, by 2013 more than 500 of those born in insurgent areas still remained unregistered.Footnote 27 Iraq's Ministry of the Interior assessed that there are at least 250–300 children born with at least one parent as an IS member,Footnote 28 while the Norwegian Refugee Council (NRC) estimates based on existing assessments that in displacement camps alone, approximately 45,000 children in Iraq are lacking birth certificates due to being born in insurgent-held areas.Footnote 29 There are an estimated 45,000 people living in the self-proclaimed Republic of Abkhazia, which has been a contested territory since 1993; Georgia does not recognize Abkhazian birth certificates.Footnote 30
Many insurgent groups preserve the documentation procedures of the State, continuing implementation by former civil registry staff and using government registry archives, facilities and supplies unless they are destroyed or depleted.Footnote 31 In other locations, village councils, religious leaders or religious court judges also issue documents, such as baptismal certificates or Islamic katb al-kitab marriage certificates, which take on a new validity due to lack of access to government-issued documents.Footnote 32 Even in insurgent-controlled areas, birth certificates are one of the required documents which must be submitted in order to access humanitarian assistance, to confirm legal status within the entity and to ensure freedom of movement through internal checkpoints.Footnote 33 Birth certificates are often required to receive local benefits such as baby food or child protection services.Footnote 34
Affected populations living in insurgent areas express the desire to obtain valid government-issued civil documentation, but many are not able to cross to government-controlled areas to access such documentation.Footnote 35 In most cases, insurgent-issued documents are not recognized outside the limited area of insurgent control.Footnote 36 Obtaining a valid birth certificate in the government-controlled areas requires making a dangerous and highly impractical journey across checkpoints and front lines with a newborn baby.Footnote 37 People with disabilities or health issues are often physically not able to make the journey. The most progressive States offer judicial validation procedures for conversion of personal status documents issued by insurgent groups as evidence of life events such as birth; however, this procedure requires an appearance in court on the government-controlled territory, and thus a court fee and transport and accommodation costs.Footnote 38 In contrast, insurgent-issued documents are low-cost and available locally, while conferring the same benefits as valid documentation within non-government-controlled areas. Restrictions on freedom of movement due to lack of valid documentation can have devastating consequences on access to health care and family reunification.Footnote 39
Even if physical barriers to accessing government registration offices were removed, many conflict-affected families fear persecution by the State and will not register in the government-controlled area in order to avoid being identified and targeted, with the result that insurgent-issued birth certificates may be the most accurate and complete form of documentation, or the only form, that they can access for their children.Footnote 40 One refugee has stated: “Many of us Syrian doctors didn't have the ability to register the births of our children in Syria because we were wanted by the regime.”Footnote 41 Children of insurgent group members are disproportionately impacted. An internally displaced woman in Syria said: “I can't register my three children in a regime civil documentation center because I am the widow of a Free Syrian Army fighter.”Footnote 42 Another significant group facing a disproportionate impact of the requirement to cross to government-controlled territory are single mothers whose male partners are missing, have been killed due to the conflict or detained, or are employed in insurgent structures and thus at risk of persecution by the State.Footnote 43 Issues of family separation and social protection become irresolvable for families who only have insurgent birth certificates when insurgent documentation is not a recognized form of proof of identity.
Because insurgent documents are not recognized as a valid form of documentation by States, families may be forced to resort to forged documents or to go through middlemen in order to procure documents by proxy, increasing risk of exploitation.Footnote 44 For many, even the possibility of a forged birth certificate as their only chance at proof of identity is out of reach on a subsistence budget.Footnote 45 Free legal aid offered by NGOs, which assist populations in government-controlled areas to obtain birth certificates, is often not permitted in insurgent areas. UN operational agencies, which may issue immunization or enrolment certificates that could serve as an alternative form of documentation, are often either non-operational or have a limited presence in insurgent-controlled areas.Footnote 46
Post-conflict response of States to insurgent birth registration
Rigid post-conflict birth registration practices, though intended to protect children from kidnapping or trafficking,Footnote 47 prove maladapted to conflict realities.Footnote 48 Re-issuance of documents once territory is retaken or families are displaced to government-controlled areas can take months or years – a “bureaucratic nightmare”Footnote 49 – and in the meantime, children are not eligible for essential services like food ration cards, medical careFootnote 50 or primary school enrolment.Footnote 51 Some parents fear that they could be separated from their children or even accused of trafficking when crossing borders, as they have no proof of the child's identity and parentage.Footnote 52 One media report tells the story of an 8-year-old boy, still unable to regularize his identity documents after being born in an insurgent area, who is not able to enrol in school and is thus isolated from his peers.Footnote 53
Families possessing insurgent birth documents report facing reprisals when the territory is retaken and they seek to regularize their documents, including arrest and interrogation because of the identity document,Footnote 54 insurgent birth certificates torn up in front of them,Footnote 55 harassment, threats and indefinite discriminatory “delays” in document issuance.Footnote 56 As a result of these risks, many families do not even dare to try to obtain valid documents.Footnote 57
Absence of identity provision during NIAC has devastating consequences for children, both during and after the conflict, especially related to family separation, freedom of movement and access to services. Analysis of practice shows that insurgent groups are already issuing identity documents, which many families use as a form of identification. However, lack of clarity regarding the legal effect of those documents outside the area of insurgent control has resulted in a legal vacuum with harsh consequences for children and families.
Birth registration under international law
Birth registration and the right to recognition as a person before the law
Birth registration was a widespread practice of States long before the rule was ever codified in multilateral treaties, yet it has taken on increasing legal application in the post-war period as it has been consistently integrated into human rights and humanitarian law treaties.Footnote 58 Due to this historical practice, the obligation to ensure legal identity of children from birth as codified in treaties should be characterized as law-declaring rather than innovative.Footnote 59 This section will argue that contemporary interpretation of these widely ratified treaties may broaden the scope of application of the norm of birth registration, recognizing the inherent power of insurgent groups to register births and obligating States to recognize children's identities which are thus registered.Footnote 60
It is clear that States have an obligation under IHRL to ensure birth registration of children. The right to recognition as a person before the law was enshrined in Article 6 of the Universal Declaration of Human Rights (UDHR),Footnote 61 though without stipulating how the right should be implemented. The 1959 UN Declaration on the Rights of the Child added the right to a name and a nationality at birth.Footnote 62 In 1966, a provision on birth registration, Article 24(2), was adopted in the ICCPR; the Human Rights Committee's General Comment No. 17 interprets Article 24(2) of the ICCPR as “designed to promote recognition of the child's legal personality”, linking it with Article 6 of the UDHR.Footnote 63 The right to be registered at birth flows from Article 16 of the ICCPR, the right to recognition under the law, as “only registration guarantees that the existence of a newborn child is legally recognized”.Footnote 64 A general comment of the Working Group on Enforced or Involuntary Disappearances forcefully states that denial of birth registration means that the affected individual becomes a “non-person”, not recognized by the law and denied access to legal protections.Footnote 65 The Inter-American Court of Human Rights judged that even a delay by the State in issuing birth certificates for children of migrants amounted to a violation of the right to a name and the right to juridical personality.Footnote 66
The Human Rights Council defines birth registration as the “continuous, permanent and universal recording within the civil registry of the occurrence and characteristics of birth”, and confirms that registration “establishes the existence of a person under law”.Footnote 67 The procedural standard involves three processes: declaration at a civil registry, recording by the registry, and finally, issuance of a certificate that is “evidence of the State's legal recognition of the child”.Footnote 68
In 1989, the CRC added to the protections of the ICCPR; Articles 7 and 8 of the CRC provide for registration immediately after birth, the right to a name and to acquire nationality, the right of the child to be cared for by parents, and the right of the child to preserve his or her identity. The CRC is by far the most widely ratified human rights treaty.Footnote 69 There are no reservations made to the CRC related to birth registration; the three registered reservations to Article 7 relate to nationality law or the possibility of registering an anonymous birth, not the act of birth registration.Footnote 70
Although several provisions of the CRC (such as freedom of expression, religion and association) may be limited in emergencies, Article 7, which relates to birth registration, does not contain a limitation clause. The CRC does not have a derogation regime, with the Committee on the Rights of the Child stating: “It is important to emphasize that the Convention and the Optional Protocols thereto apply at all times and that there are no provisions allowing for derogation of their provisions during emergencies.”Footnote 71 Article 4(2) of the ICCPR explicitly forbids derogation from Article 16 of the ICCPR (the right to recognition as a person under the law) and permits derogation from Article 24 only in a state of emergency and only to the extent and for such a time as is strictly necessary.Footnote 72 The Human Rights Council confirms that the right to be registered at birth is found in IHL, referencing Article 50 of Geneva Convention IV (GC IV), and states that birth registration is in fact critical during states of emergency, as a crucial mechanism for prevention of underage recruitment, reintegration of child soldiers and family reunification in emergencies.Footnote 73
Birth registration, then, is the minimum form of individual legal recognition of natural persons in international law. A registered child is able to access the minimum protections offered by the legal system of the territorial State.Footnote 74 The right to birth registration is separate from other aspects of legal status such as nationality, in order that legal uncertainties, such as those arising from changes in territorial control, do not affect birth registration as a minimum guarantee.Footnote 75 International organizations have prioritized birth certificates as the “preferred standard in legal identity” because birth certificates establish age, place of origin, name, and family relationships, all needed for issuing other identity documents.Footnote 76
The right to legal identity from birth is reinforced through other human rights treaties. The CRC's wording is echoed in Article 29 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their FamiliesFootnote 77 and Article 18(2) of the Convention on the Rights of Persons with Disabilities,Footnote 78 as well as in regional human rights treaties, as seen in Article 6 of the African Charter on the Rights and Welfare of the Child, Article 7 of the Covenant on the Rights of the Child in Islam, and Article 18 of the American Convention on Human Rights.Footnote 79 Article 25(1)(b) of the International Convention for the Protection of All Persons from Enforced Disappearance adds an obligation to criminalize the falsification or destruction of identity documents of disappeared children, and Article 25(5) of that convention applies the Article 3(1) CRC principle – the best interests of the child – to the re-establishment of a child's identity.Footnote 80
Birth registration as a right under customary international human rights law
The presence of identical birth registration provisions in many international and regional treaties, and in the historical practice of States which preceded these treaties,Footnote 81 serves as evidence of the uniform content of the customary norm which they codify – that is, the obligation to ensure that children can exercise their right to birth registration, in accordance with the best interests of the child.Footnote 82 There are currently no States in the world which do not have any birth registration system, although in a few countries birth registration is not mandatory.Footnote 83 In industrialized countries and in many countries in Eastern Europe, Central Asia, Latin America and the Caribbean, birth registration rates are above 90%.Footnote 84 In countries where birth rates are lower, birth registration has been prioritized in achieving Sustainable Development Goal 16, “Promote peaceful and inclusive societies for sustainable development”, as one of the key indicators is “Proportion of children under 5 years of age whose births have been registered with a civil authority, by age”.Footnote 85 The CRC is also cited as an important source for determining child-protective customary norms in conflict and directly incorporates IHL protections for children in Article 38.Footnote 86 Furthermore, when human rights norms become customary law,Footnote 87 it has been argued, “parallel norms in the Geneva Conventions with identical content” also become customary,Footnote 88 thus reinforcing consistent protections across branches of international law. Though IHRL provisions apply concurrently during conflict,Footnote 89 the law on IAC and the law of belligerent occupation also have specific provisions related to ensuring the identity of children in conflict situations.
Birth registration under international humanitarian law
Treaty law in international armed conflict
Article 24 of GC IV confirms that children affected by IAC are entitled to special protection. The parties to the conflict are encouraged to issue “identity discs” for children under the age of 12, recognizing the vital importance of the identity of children during conflict.Footnote 90
The identity discs used should be made of non-inflammable material and should bear the surname, date of birth and address of the child and its father's first name. These markings should either be engraved on the disc or inscribed in indelible ink. Further particulars might be useful, to reduce the danger of mistakes arising: finger prints, a photograph, an indication of the child's blood group, Rhesus factor, etc.Footnote 91
The ICRC's 1960 Commentary to the Geneva Conventions (1960 Commentary)Footnote 92 notes that the age limit of 12 was recommended at the 17th International Conference of the Red Cross and Red Crescent because an older child would be able to state his or her identity independently.Footnote 93 Although the obligation for material support applies only to unaccompanied and separated children, the recommendation to provide identity discs applies to all children, as it is “essential” to be able to identify all children during conflict; the 1960 Commentary recalls that after World War II, thousands of children were irreparably lost to their families due to lack of identification.Footnote 94 According to the Commentary, some delegates were concerned that children would lose or exchange their discs, and others were concerned that wearing discs might facilitate persecution of targeted groups. Ultimately, States are free to determine the form of identification they deem best.Footnote 95
Examples of State practice are limited. Mexico, the United Kingdom and the United States all include Articles 24 and 50 of GC IV in their military manuals,Footnote 96 while Ireland and Guinea have included provisions related to child identification in conflict in their domestic legislation, with Ireland incorporating the Geneva Conventions into domestic law and Guinea, though without citing specific IHL provisions, stating that such obligations also apply in internal conflict.Footnote 97 The United Kingdom issued identity discs for British children evacuated to Commonwealth countries during the Children's Overseas Reception Scheme.Footnote 98 There were informal efforts to issue identity discs for children in Australia during World War IIFootnote 99 and in the United States during the Cold War.Footnote 100 Although there is no recent State practice, which could indicate that the norm has fallen into desuetude, conflict-affected States with pre-war birth registration systems are often able to implement birth registration systems in territory which they control, with the main impact limited to conflict-affected areas;Footnote 101 this indicates that State capacity surpasses the limited requirements of black-letter law due to technological advances in information management. States without pre-existing birth registration systems may not even be able to issue identity discs, but efforts of the international community have focused on building capacity to administer modern civil registration systems rather than to issue identity discs, also a technological advancement not anticipated by GC IV.Footnote 102
Article 78(3) of Additional Protocol I to the Geneva Conventions (AP I) updated the identity disc to a paper-based photo identification card, for which the ICRC would maintain a registry.Footnote 103 Article 78(3) of AP I proposes that the card should include not only the name, place and date of birth, parents’ names, and next of kin, but also nationality, language, health condition, and other details relevant for an evacuation scenario, as long as “it involves no risk of harm to the child”. The identity disc of GC IV Article 24 and identity card of AP I Article 78(3) are lex lata which illustrate how States may fulfil their obligations to identify children in the context of IAC, when materially possible.
Treaty law in belligerent occupation
The law on belligerent occupation recommends that the Occupying Power should ensure identification of children through registration processes, in the context of detention, evacuation and family reunification. Article 136 of GC IV mandates a registration mechanism, the information bureau, to ensure that births of protected persons are recorded. Article 50 of GC IV states that a special section of the Article 136 bureau should be dedicated to identifying children and registering their family ties. The 1960 Commentary clarifies that Article 50, like Article 24, represents a strong recommendation for parties rather than an obligation.Footnote 104 However, the Commentary pronounces the importance of birth registration in strong terms, describing the registry system as “essential to the legal life of the community” and stating that a system for identifying children is of “extreme importance”, particularly for “newly born infants”.Footnote 105 The 1960 Commentary mentions respect for “the inviolability of the child's personal status” as the legal principle related to the basic guarantees of Article 24 of GC IV.Footnote 106 The Commentary proposes that registration should record, at a minimum, the place and date of birth, nationality, residence, and any physically identifying marks.Footnote 107
The drafters of GC IV did not impose an absolute obligation to register births even in the context of belligerent occupation, due to the heterogeneity of conflict contexts. The 1960 Commentary clarifies that if registration facilities were destroyed, the Occupying Power would not be obligated to establish them anew; however, if the previous registration system were still functioning, the Occupying Power is bound not to interfere, and “to allow that system to continue and to facilitate its working”.Footnote 108 If similar rules were applied in situations where insurgent groups control territory,Footnote 109 they would also be bound to respect the operations of local registry offices, which is happening currently in several insurgent contexts, as we saw earlier in this article.
Treaty law in non-international armed conflict
GC IV and AP I protections only apply to IACs, in which the parties to the conflict are necessarily States. In NIACs between States and insurgent groups, only common Article 3 and AP II apply. Common Article 3 applies to “armed [conflicts] not of an international character”, which are not defined, but indicate that an intensity threshold must be reached in order to trigger application, while AP II, which applies only to its 169 States Parties, contains the further requirement that the Protocol only applies when an insurgent group exercises control over territory and has an adequate level of organization to carry out sustained military operations.Footnote 110 The law on NIACs contains a limited obligation for insurgent groups to ensure recognition as a person under the law in the context of insurgent courts, with common Article 3(1)(d) prohibiting sentencing without “a regularly constituted court, affording all the judicial guarantees … recognized as indispensable”; Article 6 of AP II also categorically prohibits prosecutions without due process and elaborates on the required elements to satisfy that obligation. These provisions represent an understanding by States that a minimum level of recognition as a person under the law should not be denied to persons under insurgent control.
In common Article 3, children are not mentioned specifically; in Article 4(3) of AP II, the specificity of protections due to children is greatly reduced in comparison with Articles 77 and 78 of AP I. However, as AP II applies to both States and insurgent groups, the Commentary on the APs recalls that both “de jure and de facto [authorities] have the duty” to ensure protection of children.Footnote 111 The 2017 Clapham et al. Commentary to the Geneva Conventions confirms contemporary views on child protection in NIAC, stating that “non-state actors are not free from obligations”Footnote 112 and that “children as a distinct group are not without specific protection during NIACs”.Footnote 113
Although a separate article on child protection was originally part of an early draft of AP II during the negotiation process, in the final text only an abbreviated version was included as Article 4(3).Footnote 114 The original draft of Article 4(3)(b), as submitted by the ICRC, had proposed that “children should be identified in the conflict zone whenever possible and necessary, and information bureaux should be established” as in Article 24 of GC IV.Footnote 115 Although delegations did not adopt these measures “from a fear that it might not be possible to apply them materially”, the Commentary on the APs states that Article 24 of GC IV remains the guidance for understanding what constitutes “all appropriate steps” to reunite families under Article 4(3) of AP II.Footnote 116 The obligations of parties to a conflict towards children in Article 4(3) of AP II are education, family reunification, prohibition on underage recruitment, protection for child detainees, and evacuation. However, the list is not exhaustiveFootnote 117 and the phrasing added later, “care and aid they require”, is interpreted by the Commentary as warranting a case-by-case approach to assistance for children.Footnote 118 Specific measures are neither specified nor prohibited in order to implement these obligations, but birth registration is relevant to all of them, since some proof of identity is required in order to practically organize education, family reunification and evacuation.
As many insurgent groups have shown that they do indeed have the capacity to register births in the conflict zone, and since Article 24 of GC IV remains the interpretive guide for those provisions according to the 1960 Commentary, Article 4(3) of AP II contains an implied power, or permission, for insurgent groups to issue identity discs or cards, when materially possible, in order to fulfil their obligations under Article 4(3) of AP II. This power does not rise to the level of an obligation, as it is not explicitly mentioned in the text, but such a power may be exercised for the purpose of implementing the explicit obligations. Similarly, if States refuse to recognize an insurgent-issued identity card which would prove a child's identity for the purpose of family reunification and evacuation, or prove a child's age to prevent underage recruitment, that would not be in keeping with the spirit and purpose of Article 4(3) of AP II, which obligates both parties to protect children.
Customary international humanitarian law
Like the CRC, the Geneva Conventions are almost universally ratified.Footnote 119 The International Court of Justice (ICJ) has recognized provisions of the Geneva Conventions as customary law in a NIAC.Footnote 120 The Eritrea-Ethiopia Claims Commission stated that provisions of the Geneva Conventions applied as custom to the then unrecognized entity of Eritrea.Footnote 121 Although consensus is still in progress regarding the content of customary IHL, the ICRC has produced a study entitled Customary International Humanitarian Law (ICRC Customary Law Study)Footnote 122 which compiles and analyzes State practice in order to identify customary rules of IHL and clarify their content. Although some States, notably the United States, have objected that the ICRC Customary Law Study may relate more to States’ adherence to treaty obligations rather than to creation of custom,Footnote 123 it remains the most comprehensive study to date of customary IHL and includes relevant practice of States which have not ratified the Additional Protocols.
Since this article wishes to understand the law relevant to insurgents, this section will focus on custom that is applicable in NIAC. The ICRC Customary Law Study finds that, by custom, children affected by NIAC are entitled to special protection.Footnote 124 The customary obligation to facilitate family reunificationFootnote 125 and to ensure access to humanitarian aid,Footnote 126 and the customary prohibition on underage recruitment,Footnote 127 can arguably be linked to a customary obligation to provide proof of identity from birth, as fulfilment of these obligations requires that the authority in question be able to reliably establish the age and identity of the civilian concerned, as argued above in relation to Article 4(3) of AP II. Rule 123 of the ICRC Customary Law Study, “Recording and Notification of Personal Details of Persons Deprived of Their Liberty”, describes the customary obligation in NIAC for the parties, including insurgent groups, to record the identities of civilian internees, including by recording births.Footnote 128 If State practice indicates that insurgent groups are obligated by custom to record births in detention, tacitly acknowledging that they are the only entity physically able to record those births, it is not a great leap to assert that insurgent groups are permitted to register births of non-detained persons under their effective control when materially possible, since they are the only entity able to record those births too.
Birth registration in the context of internal displacement
Although the human rights law obligation to register births might seem to apply exclusively to States, the UN Guiding Principles on Internal Displacement (Guiding Principles)Footnote 129 apply an obligation to issue birth documents to insurgent groups. The Guiding Principles were recognized by the UN General Assembly in 2005 as “an important international framework for the protection of internally displaced persons”,Footnote 130 consistent with IHRL and IHL.Footnote 131 The Principles explicitly include documentation as a component of recognition as a person before the law (Principle 20(1)), including birth certificates (Principle 20(2)). Authorities “shall issue” documents, “without imposing unreasonable conditions, such as requiring the return to one's area of habitual residence” (Principle 20(2)). The Annotations to the Guiding Principles base this obligation in Article 8(2) of the CRC and Article 24(2) of the ICCPR, stating that Principle 20 attempts to fill a gap in protection, as Article 50(2) of GC IV and Articles 20 and 25 of the Refugee Convention, which regulate issuance of identity documents, do not apply to NIAC or to internal displacement respectively.Footnote 132 Principle 2(1) explicitly directs its provisions to “all authorities, groups and persons irrespective of their legal status and applied without any adverse distinction”, echoing the wording of common Article 3. Principle 20 thus reflects a degree of support by States for applying obligations related to document issuance to insurgent groups.Footnote 133 Moreover, the adoption of a growing number of national laws and regional treaties based on the Guiding Principles in the twenty years since their development lends support to the argument that the provisions in the Principles may be gradually hardening into binding international legal obligations.Footnote 134
Insurgent birth registration and State recognition
Treaty and customary law indicate that insurgent groups have the power to register births
IHRL and IHL outline prohibitions and obligations on duty bearers, but do not always specify the exact mechanism by which these are to be fulfilled. They are “paradigmatic substantive rules on governance”, which presume procedures that make implementation of rights possible.Footnote 135 Birth registration is a procedural right which secures the substantive right to recognition as a person under the law. Recognition under the law is a non-derogable right under IHRL, applicable in peace and conflict. In peacetime, States are obligated to ensure children's right to recognition under the law through birth registration, and in armed conflict, States are recommended to register births whenever materially possible, including through alternative procedures such as identity discs or cards. Insurgents are obligated under IHL to respect recognition as a person under the law in the context of penal prosecution. Insurgent groups are not prohibited from identifying children under IHL, and several provisions of humanitarian law – notably Article 4(3) of AP II, which the Commentary on the APs states should be interpreted in light of Article 24 of GC IV, and Rule 123 of the ICRC Customary Law Study – strongly imply that insurgent groups have an inherent power to register births. Although not rising to the level of an obligation to register births since this obligation is not explicit in Article 4(3) of AP II, the power to register births will enable insurgents to fulfil their obligations under IHL to treat civilians humanely, take all measures to reunify families, prevent underage recruitment and facilitate safe evacuation, and are in harmony with the insurgent obligation to ensure recognition under the law in the operation of insurgent courts.
This section will consider theoretical bases explaining why insurgent groups which exercise effective control of territory may assume the power to register births in order to fulfil their obligations under IHL. The idea that insurgents possess obligations under international law may be justified by arguments based on their capacity, their effective sovereignty, domestic legislative jurisdiction, and obligations under customary international law. This article does not provide an exhaustive treatment of these theories, which are comprehensively addressed in the references cited in this section, but rather presents a range of reasonable options which support the general argument that insurgent groups may assume certain legal obligations. I will then counter the major objections to State recognition of insurgent birth registration, including the obligation of non-recognition, State sovereignty and lack of effective control, and the fear of inappropriately legitimizing insurgents. My counterarguments remind us that the obligation of non-recognition is not absolute, that multiple duty bearers may bear differing obligations to fulfil rights, and that engagement and legitimacy are inherently in tension in IHL.
Insurgent group capacity gives rise to obligations
Many insurgent groups have capacity far beyond common Article 3 standards, yet there are no detailed minimum standards for their treatment of the civilian population at large, leaving a legal vacuum.Footnote 136 Capacity as a trigger for insurgent obligation is well represented in the academic literature;Footnote 137 though not uncontroversial, many objections are based in scepticism that insurgent groups are materially able to implement these obligations,Footnote 138 but in fact, as we have seen earlier in this article, they are. Arguing that insurgent groups have the right to establish courts under common Article 3, Somers states that they possess “the legal capacity to exercise the rights which flow from the obligations and prohibitions of IHL”.Footnote 139 Capacity may also trigger IHRL obligations; for example, the International Criminal Tribunal for the former Yugoslavia's Čelebići decision reinterprets the definition of torture in international IHRL to recognize the “official capacity” of insurgent groups, “in order for the prohibition to retain significance” in NIAC.Footnote 140 Several scholars have suggested that capacity of insurgent groups should determine their level of obligation in a manner similar to the obligation of progressive fulfilment of rights in the International Covenant on Economic, Social and Cultural Rights.Footnote 141 Capacity as a trigger for obligations is a similar concept to the organizational criteria of AP II, which triggers application of obligations under the Protocol and by extension should also trigger related customary norms.
Insurgent groups’ de facto control and effective sovereignty give rise to obligations
Combining the capacity-based approachFootnote 142 with the needs of individual rights holders, Murray proposes a “context-dependent approach” which considers both insurgent group capacity and the needs of the affected population together. Murray calls the legal basis for this approach the “de facto control theory”, where exclusive territorial control and effectiveness trigger applicability of human rights obligations to prevent a legal vacuum.Footnote 143 The “de facto control theory” is similar to the principle of “effective sovereignty” over territory, by which the 1960 Commentary explains how insurgent groups are bound by common Article 3.Footnote 144 If an insurgent group controls territory, especially when the State is absent, a threshold for new powers and obligations has been reached. The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict states that when insurgent groups maintain effective control over a territory, and when the State is not able to meet the needs of the civilian population, the insurgent group has a responsibility to meet those needs.Footnote 145 Special Rapporteurs have held that when insurgent groups exercise control over territory and political organization, these groups are bound by the “demands” and “expectations” of the international community to respect basic human rights.Footnote 146 Similarly, an analogous “agents of necessity” theory is based on Article 9 of the International Law Commission (ILC) Draft Articles on State Responsibility, whereby public governance by non-State actors is considered “an act of a State” in a situation of necessity when “state action is missing but required”, for example during loss of control of territory.Footnote 147
Schoiswohl states that insurgents controlling territory have “an implied mandate” to fulfil administrative functions in the territory which they controlFootnote 148 and even “an inherent duty” to respect international human rights standards in fulfilling those functions.Footnote 149 Schoiswohl goes even further to speculate that de facto authorities may be “entitled” to assume administrative functions and that States may “inhibit the exercise” of the human rights of individuals living in insurgent-held areas if they fail to recognize the legal effect of such insurgent acts.Footnote 150 Gal similarly argues that the factual circumstance of effective territorial control by insurgent groups should extend the application of existing norms to ensure protection for the local population, for example by applying the law of occupation to such territories.Footnote 151 Although insurgent groups do not have full legal personality, due to their control of territory they become “bearers of international obligations”.Footnote 152 As with capacity/organization, control of territory again relates to the criteria for triggering application of AP II obligations, and by extension, related customary norms.
Insurgent groups bound by treaty obligations of the territorial State
The Human Rights Committee has stated that the rights set out in the ICCPR belong not to the State, but to the individuals living in the territory of the State: “once the people are accorded the protection of the rights under the Covenant, such protection devolves with territory and continues to belong to them”.Footnote 153 In the ICJ Genocide case, Judges Weeramantry and Shahabuddeen stated that the treaty rights should still apply to the population, since human rights treaties represent a commitment to international norms beyond the interests of a single State, and will be needed most in times of instability.Footnote 154 The principle that rights continue to protect the local population after a transition in de facto authority is in harmony with the theory that insurgent groups are bound by the treaty obligations of the territorial State.Footnote 155 Indeed, States have recognized that control of territory entails responsibility related to international treaty obligations. In the US Civil War, Great Britain asked the Confederate States to fulfil US treaty obligations, and in the Spanish Civil War, the Spanish government informed the Portuguese government that the Franco rebels were responsible for international treaty obligations in the area under their control.Footnote 156 In more recent examples where territorial control has been linked with treaty obligations, the European Parliament has called upon the Transnistrian authorities to comply with European Court of Human Rights (ECtHR) rulingsFootnote 157 and Israel has stated before the UN Committee on Economic, Social and Cultural Rights that the Palestinian Council, though not a State, is not “preclude[d from] responsibility in the sphere of human rights protection”.Footnote 158 Devolution of treaty obligations explains how obligations under AP II apply to insurgent groups in States which have ratified the Protocol.
Insurgent groups are bound by customary law
Although not uncontested, direct application of customary norms as binding on insurgent groups is well represented in the jurisprudence of international tribunals, from the ICJ to the international criminal tribunals.Footnote 159 Customary international law can only bind an insurgent group if the entity possesses international legal personality.Footnote 160 Traditionally only States could be bound by international law, but in the 1949 ICJ Reparations Advisory Opinion, the ICJ recognized that the “needs of the community” influence the definition (the “nature”) of entities with international legal personality, making way for the concept of different types of legal subjects.Footnote 161 Recognizing limited, functional legal personality of insurgent groups, permitting them to take on certain powers or obligations under customary law, can meet the needs of States by binding these groups to norms which States have created and recognized,Footnote 162 as well as meeting the needs of the wider community of individual rights holders by increasing protection. The Special Representative of the UN Secretary-General for Children in Armed conflict has called on insurgent groups to abide by “traditional norms governing the conduct of warfare”.Footnote 163 The Darfur Commission of Inquiry stated that insurgent groups meeting criteria of control of territory and organization possess international legal personality and are bound by customary international law,Footnote 164 and the Commission of Inquiry on Syria stated that the actions of insurgent groups “may be assessed by customary international legal principles”.Footnote 165 This language by UN quasi-judicial bodies shows that there is increasing awareness of the urgent need to address insurgents exercising territorial control with relevant customary norms regulating their conduct, moving from a traditional State-centric understanding of legal obligation (or as Alston terms it, the “not-a-cat” approach to non-State actorsFootnote 166) to a more flexible concept recognizing different degrees of authority. Customary law applies regardless of treaty ratification; thus, in States which have not ratified AP II, relevant customary norms will apply to both States and insurgent groups.
States have an obligation to recognize insurgent birth registration
The obligation of non-recognition is not absolute
An obligation of non-recognition of unlawful exercise of authority does exist. Article 41(2) of the ILC Draft Articles on State Responsibility states that “no State shall recognize as lawful a situation created by a serious breach [of jus cogens]”, prohibiting, for example, recognition of the administration of a territory which was seized through a violation of the prohibition on the use of force.Footnote 167 However, the obligation of non-recognition of official acts issued by an unrecognized entity is not an absolute obligation. The commentary on the draft articles clarifies that “the consequences of the obligation of non-recognition are not unqualified”, citing the ICJ Namibia Advisory Opinion, which judged that the obligatory invalidity of legal acts “cannot be extended to those acts, such as the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory”.Footnote 168 Similar jurisprudence recognizing administrative acts of unrecognized entities is found in national court decisionsFootnote 169 and in cases of the ECtHR.Footnote 170 Therefore, Schoiswohl concludes that it is now “firmly established … in international jurisprudence that the validity [of legal acts of de facto regimes] derives directly from current international law and does not depend on the subjective will of States”.Footnote 171
If the obligation of non-recognition of insurgent legal acts is not absolute, while the State remains the primary duty bearer under international law for public administration, the door is opened for insurgents to become a duty bearer for certain tasks of civil administration in territories which they control. The tests for which administrative acts can be recognized by States should be drawn from the ICJ's Namibia Advisory Opinion, which notes that “non-recognition … should not result in depriving the people of any advantages derived from international cooperation”Footnote 172 and that States should continue to respect “general conventions such as those of a humanitarian character, the non-performance of which may adversely affect the people”.Footnote 173
Application of IHRL, extraterritorially and in situations where States are not in effective control of territory, can explain the concept of shared State and insurgent obligations by way of analogy. The ICJ and ECtHR have elaborated in their jurisprudence that human rights obligations are applicable both in areas not under effective control of a recognized StateFootnote 174 and in areas under a State's effective control outside its own borders,Footnote 175 with duty bearers having a different share of the obligation depending on their level of effective control. This principle is also present in decisions and general comments of the Human Rights Committee.Footnote 176 The ECtHR has held that human rights, being indivisible, cannot be divided and tailored, as rights holders must be able to exercise the full spectrum of rights;Footnote 177 however, States can be held responsible to the degree that they exercise effective control, with the obligation to fulfil human rights thus “divided and tailored” between duty bearers in order to ensure full protection of rights.Footnote 178 If effective control is shared, so is the obligation.Footnote 179 In this way, rights are upheld and the State retains its status as the primary duty bearer, though the implementation of that obligation takes a different form due to the loss of effective control – for example, in the form of financial support or diplomatic efforts rather than direct implementation. Regarding birth registration, the obligation should take the form of State recognition of insurgent birth registration.
State fears that recognition will inappropriately legitimize insurgent groups are misplaced
Unlike insurgent detention or facilitation of humanitarian assistance, birth registration by insurgent groups must uniquely be recognized as a legally valid act by a wide range of duty bearers in order to offer meaningful protection for rights holders. Without State recognition of insurgent birth registration, the power or capacity of insurgent groups to register births will not result in increased protection for children. Logically, there is no reason for insurgents to have the power to register births if that registration will not be recognized. The question of birth registration in insurgent-controlled areas is at the nexus of individual recognition as a person before the law, which is a non-derogable human right, and recognition of legal acts of non-State entities under international law, which is highly contested.
States are extremely wary of legal recognition of insurgent groups and therefore also avoid recognition of insurgent administrative or legal acts. One of the main characteristics of the law on NIAC as developed by States is its silence on recognition generally; for example, IHL does not authorize insurgent detention, but simply regulates applicable minimum protections, denying a clear legal basis for insurgent detention.Footnote 180 More broadly, States at times refuse to acknowledge the very existence of conflict to avoid granting insurgents status under common Article 3,Footnote 181 much less under AP II,Footnote 182 as categorization of armed conflict gives armed groups a “curious sort of international recognition”.Footnote 183 However, States’ reluctance to recognize insurgent status may be driven by political considerations in order to evade their obligations under IHL. As an example by analogy, in Hamdan v. Rumsfeld, the US Supreme Court found that the US government had violated common Article 3 by not extending the IHL protections of either civilian or prisoner-of-war status to Hamdan.Footnote 184 While not directly related to legal acts of insurgents, the Hamdan case shows the lengths to which States may seek to evade their obligations. States may fear that recognizing insurgent birth registration means recognizing de facto control of the population, as registration provides feedback on population numbers. However, States may also unjustly withhold recognition in order to manipulate demographic statistics, since “exclusion [from birth registration] is an effective way of deliberately massaging population figures”.Footnote 185 Recognizing State recalcitrance, the law on NIAC imposes obligations on parties to a conflict regardless of recognition of status.Footnote 186
Furthermore, States have not always refused to recognize the validity of insurgent birth registration. The legal effect of insurgent-issued civil documents was uncontroversial in the American Civil War, with US Supreme Court cases confirming the validity of insurgent-issued civil acts,Footnote 187 even stating: “No one that we are aware of seriously questions the validity of judicial or legislative acts in the insurrectionary states touching these and kindred subjects [i.e. birth and marriage certificates].”Footnote 188 In contemporary examples, insurgent birth registration documents and databases have been recognized for the purpose of allowing parents and children to exercise rights, with the Russian Federation accepting Chechen birth certificates as proof of eligibility for child welfare benefits in 2001,Footnote 189 and the Angolan government recognizing information from the insurgent-run birth registration system to reunite separated children with their families after the 2002 peace agreement.Footnote 190
Recognition of insurgent birth registration requires tackling head-on the question: at what point do the humanitarian goals of IHL outweigh concerns that States have about inappropriately legitimizing insurgent groups? Any engagement with insurgent groups, including recognition of their legal acts, may result in increased legitimacy, but the tension between the benefit of engaging with insurgent groups and the risk of inappropriately legitimizing them is already inherent in common Article 3,Footnote 191 which acknowledges insurgent groups as parties to a conflict but does not entitle them to legal status. States came to a consensus when they adopted common Article 3: the increase in legitimacy gained by insurgent groups as parties to a conflict is far outweighed by the protections resulting from engagement. The UN Secretary-General, in his 2017 report on protection of civilians in armed conflict, stated: “The focus on [insurgent] recognition and legitimacy is problematic, in that it detracts from the more serious issue of the consequences for civilians when engagement does not take place.”Footnote 192
The reductio ad absurdum of legitimacy concerns is to hope that insurgent groups will violate IHL norms in order to decrease their legitimacy.Footnote 193 Although the “legitimizing effect” is recognized as an incentive for refusing to engage with insurgent groups, the potential for legitimacy is also a powerful motivator.Footnote 194 Recognizing the legal effect of insurgent birth registration does not put insurgents on the same level as States, but it increases protections for the civilian population under their control.Footnote 195 Parties to a conflict do not have equal legal status under IHL; rather, their equality lies in their “equal rights and obligations flowing from the international law norms regulating the subject matter of IHL”.Footnote 196 States have additional rights, such as the right to grant nationality, accede to treaties and participate in multilateral bodies, as well as additional obligations, including the full range of obligations under IHRL and the UN Charter. However, under IHL, both parties have equal rights and obligations with regard to conduct of hostilities and humane treatment of non-combatants.
Conclusion
Insurgent groups who meet the criteria of Article 1(1) of AP II have the obligation to reunite families, prevent underage recruitment and facilitate evacuation under Article 4(3) of AP II, and similar customary norms apply to insurgents in States which have not ratified the Protocol. Insurgent groups are required to register births of detainees and to ensure some form of recognition as a person under the law in the context of insurgent prosecution. These obligations imply an inherent power or capacity to register births, since birth registration is instrumental in effectively fulfilling all of these obligations, though not rising to an obligation on insurgent groups to register births, since this obligation is not explicit in Article 4(3) of AP II. According to the Commentary on the APs, the delegates who drafted AP II believed that insurgent groups would not have the capacity to register births. However, since they do in fact have that capacity and since the law on NIAC does not prohibit insurgent groups from registering births, I argue that they are permitted to do so in order to fulfil their IHL obligations. There are several legal theories which explain how both treaty and customary obligations may be binding on insurgent groups.
States have the obligation to register births under IHRL, but under the law on IAC and the law of belligerent occupation, they are not obligated to do so; Articles 24 and 50 of GC IV are not obligatory according to the 1960 Commentary. However, States are strongly encouraged to register all births of populations under their control whenever materially possible, given the grave consequences for children of not doing so. The reasons given in the Commentary for not absolutely requiring States to register births in conflict are material conditions and State lack of capacity to do so in some intense conflict contexts. Though the law on NIAC does not specifically mention birth registration, I argue that States are obligated to recognize insurgent birth registration where insurgents are registering births, in order to fulfil State obligations under Article 4(3) of AP II (family reunification, evacuation and prevention of underage recruitment), and in accordance with the non-derogable human rights obligation to ensure the right to recognition as a person under the law. Furthermore, the law on NIAC does not prohibit State recognition of insurgent birth registration. If insurgents are registering births, and State objection to recognition is merely political and is not justified by States’ material incapacity to do so, then non-recognition of insurgent birth registration is not consistent with the object and purpose of the AP II Article 4(3) obligations, nor with the non-derogable obligation to ensure recognition as a person under the law. Recognition of insurgent birth registration is a matter of law, while the specific administrative mechanism for recognition and type of registration method are matters of policy that are left to States to decide.
Many insurgent groups register births in territories not under State control, though this registration is rarely recognized by States. However, lack of clarity regarding the legal effect of insurgent birth registration outside the area of insurgent control has resulted in a legal vacuum, with harsh consequences for children and families. The main arguments against recognition of insurgent birth registration do not stand, because the obligation of non-recognition is not absolute, recognition does not necessarily confer legal status, and practice of international bodies has shown that the way forward in balancing engagement and legitimacy lies in prioritizing the rights and protection of the local population.
Ultimately, insurgent groups are already registering births whether or not States choose to engage with such registration. However, greater engagement between States and insurgent groups on IHL norms, such as working together to register children for the purpose of reunification or evacuation, may offer opportunities to encourage compliance in other areas of IHL.Footnote 197 Limiting the scope of insurgent groups’ powers to basic functions which are needed to fulfil IHL obligations, such as registering births, reduces aspirations of political legitimacy, and simply regulates the ongoing actions of insurgent groups.Footnote 198
