Rebel Courts: The Administration of Justice by Armed Insurgents

478 Pages·2021·2.97 MB·English

by  René Provost

Rebel Courts

Rebel Courts
The Administration of Justice by
Armed Insurgents
RENÉ PROVOST
McGill University
1
3
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Library of Congress Cataloging-i n- Publication Data
Names: Provost, René, 1965– author.
Title: Rebel courts : The administration of justice by armed insurgents / René Provost, McGill University.
Description: New York, NY : Oxford University Press, [2021] |
Includes index.
Identifiers: LCCN 2020056003 | ISBN 9780190912222 (hardback) |
ISBN 9780190912239 (Updf) | ISBN 9780190912246 (Epub) | ISBN 9780190912253 (digital-online)
Subjects: LCSH: Insurgency. | Justice, Administration of. | Legitimacy of governments. |
Recognition (International law)
Classification: LCC KZ4058 . P76 2021 | DDC 341.6/90268—dc23
LC record available at https://lccn.loc.gov/2020056003
DOI: 10.1093/ oso/ 9780190912222.001.0001
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For SVP,
who does
fieldwork
in the terrain
of legal
imagination
Acknowledgments
Most days of the five years that I spent working on this project, I walked by
an inscription on the wall outside the Nahum Gelber Law Library at McGill
University that reads “πάντα κινῆσαι πέτρον / Leave no stone unturned /
Remuer ciel et terre”. It is a quote from Euripides that speaks strikingly clearly to
the kind of project this has been. At one level, it has been a painstaking, slow, and
frustrating search for information, like turning stones. In parts, it involved fol-
lowing countless leads, looking for a thousand needles in a thousand haystacks,
most often coming up empty-h anded; in other parts, it required manual labour,
a dusty hands- on grappling with the reality of war in different areas of the world.
At a second level, the inscription on the library wall highlights the challenge
of translation in this project. The versions in Ancient Greek (literally “always
move stone”), English, and French (literally “shake heaven and earth”) nod in
the same direction, but there are clear divergences of accent in the vernacular
of each. Likewise, a project on the rebel administration of justice takes concepts
native to the idea of justice largely at the hands of the state and translates them to
speak to the practice of non- state armed groups in a way that can be intelligible
to such groups. As with any translation, this is a creative endeavour that reflects
a tension between an affirmation of the translator’s identity and a duty of fidelity
towards the original text. There is a third level at which the inscription speaks to
this project: shortly after the law library was completed in 1998, a keen classicist
noticed that there was a typographical error in the Ancient Greek. It was decided
to pull out that stone, turn it around, and re- engrave the message properly. Thus,
if someone were to turn over the stone with the inscription inciting the reader
to “leave no stone unturned”, one would uncover at the back another inscription
with a slightly different message.1 The conceptual deconstruction of the adminis-
tration of justice in this book likewise often has revealed hidden and unexpected
facets of otherwise very familiar legal norms.
Following these thoughts, the first people to thank are appropriately the
librarians at the Nahum Gelber Law Library at McGill. Over the years, I have
tested their skills, and possibly their patience, with long lists of sources that
I wanted to consult. Despite the challenge of foreign sources in many lan-
guages held in unresponsive institutions, compounded in the last stretch by
1 My thanks to Daniel Boyer for the details of this story and on the Greek translation, and to
Daniel Jutras for drawing attention to the resulting paradox.
xii Acknowledgments
virus- related closures, they remain a delight to work with. The Faculty of Law of
McGill University provided the broader base for this research project. I am in-
debted to the many colleagues who over the years have made this place an ebul-
lient cauldron of ideas, including our sorely missed colleagues Patrick Glenn and
Rod Macdonald who did so much to expand our normative horizon.
The Pierre Elliott Trudeau Foundation in 2015 awarded me not only a gen-
erous prize but also a large research fellowship for me to use basically as I saw fit.
It provided both the impetus for the idea of this project and the essential finan-
cial lifeblood to carry it out. Each year, the Foundation names four or five fellows
from across the widely defined social sciences and humanities field. Having the
chance to meet periodically with these brilliant scholars was an opportunity for
the kind of intense intellectual exchange that academia should foster more sys-
tematically. A special word of thanks to one of these fabulous fellows, Myriam
Denov, who tolerated me on her own project on children born of war and intro-
duced me to the basics of ethnographic research. I acknowledge the U.C. Irvine
Law Review, in which an early version of Chapter 1 was published in 2018.
Many people provided specific assistance in the realisation of this project.
Several academic researchers were very generous in sharing ideas and materials
with me as I set out to map the practice of various armed groups, including
Zachariah Mampilly, Ana Arjona, Mara Revkin, Adam Baczko, Jonathan Somer,
Kate Cronin- Furman, Nira Wickramasinghe, and Nimmi Gowrinathan. In the
field, I became an expert at exploiting the most tenuous connection or intro-
duction to talk to anyone and everyone who could have some insight into in-
surgent justice. Many people were generous beyond the call with their time
and ideas. I have come to the conclusion that it is best to offer a blanket anon-
ymous thank you, because the political landscape in war- afflicted countries can
shift so unpredictably that it is difficult to predict who should not be named
for their own safety. At McGill, I relied upon undergraduate and graduate law
students to provide research assistance, including Mélissa Beaulieu Lussier,
Fiona Cooke, Didem Dogar, Vincent Marquis, Lucas Mathieu, Anne- Sophie
Ouellet, Dhananga Pathirana, Amy Preston- Samson, Tiran Rahimian, Isabelle
Rémillard, and Jeffrey Smith. I was the happy beneficiary of their industry and
intelligence, and the many long conversations with them about rebel courts were
one of the pleasures of this project.
Throughout this project, I received words of encouragement like “haven’t you
been working on that book for long enough?” or “isn’t there a war you should
be going off to instead of bothering me?” from my three sons Daniel, Micah,
and Ari. Vous voyez les gars, c’est fini; comme quoi tout arrive. Their notional
little sister, Pulga, was a quieter supportive presence for much of the writing of
the book. Finally, Shauna literally has been my partner- in- all- things for three
decades— I couldn’t have done any of it without you.
Introduction
When a country is being subverted it is not being outfought; it is
being out- administered.
— Bernard Fall, ‘The Theory and Practice of Insurgency and
Counterinsurgency’ (1965) 18 Naval War College Review 21, 34
“It seemed the right thing to do at the time” may be what Haisam Omar Sakhanh
is thinking from the relative comfort of the high-s ecurity prison in Sweden where
he is serving a life sentence for war crimes. After completing the mandatory
three- year military service in the Syrian army, he had worked as an electrician in
Syria and abroad. When the regime of Bashar Al- Assad started killing children
and committing other horrific crimes, he felt he had to do something, and he be-
came active in the opposition movement.1 After fleeing to Italy, Sakhanh partici-
pated in anti-A ssad protests in Milan before deciding that he had to join the fight
to free his country. He flew to Hatay airport in southern Turkey on 30 April 2012,
crossing the border through the mountains to join the Suleiman Battle Company
in the village of Kfar Kila. This rebel group had a reputation for being well armed
and effective, operating independently of, but in collaboration with, the Free
Syrian Army in the fight against the Assad regime. Sakhanh was immediately
incorporated into the armed group, and his war experience took a turn only four
days after joining the rebellion. On the night of 4 May, his unit was involved in
an attack against a government outpost, leading to the capture of eleven soldiers
of the Syrian armed forces. Two were freed immediately, but the other nine were
detained on suspicion of mistreating passing refugees over previous weeks. The
next day, Sakhanh was detailed to another village to participate in the funerals of
one member of his unit killed in the attack. When he returned, he was told that a
Free Syrian Army Judicial Council composed of judges who had defected from
the regime had held a court- martial for the detained Syrian soldiers in a town a
few kilometres away. The court had heard from numerous witnesses, and mobile
1 Swedish Police Interview of Omar Sakhanh, 12 March 2016: Nationella Operativa Avdelningen,
Förhör med Sakhanh, Haisam Omar, diarienr: 5000-K 132600- 16 (2016) 1057.
Rebel Courts. René Provost, Oxford University Press. © Oxford University Press 2021.
DOI: 10.1093/ oso/ 9780190912222.003.0001
2 Rebel Courts
phones found on the accused contained videos of the soldiers raping women.2
Two of the soldiers were acquitted, and seven were found guilty of the rape and
murder of civilians. Applying the Syrian Penal Code, the rebel judges sentenced
these seven men to capital punishment. When Sakhanh heard his name called to
join the firing squad, he felt a bit nervous but not uncomfortable: he was a soldier,
orders must be obeyed, and he had no reason to distrust the group that he had
joined.3 Fatefully, someone filmed the execution. After three months in Syria,
Sakhanh decided that armed insurgency was not for him, and he made his way
to Sweden. He claimed to be a refugee from Syria, affirmed that he had taken no
part in armed hostilities, and was duly granted refugee status in October 2012.
The video of the execution eventually made its way to the New York Times, which
posted it online. Someone in Sweden recognised Sakhanh, and he was arrested
in 2016 and accused of murder. At trial, Sakhanh acknowledged that it was him
on the video, but argued that he had been carrying out a lawful punishment
imposed by a regularly constituted court of an armed group in the context of
a non- international armed conflict. In February 2017, the Stockholm District
Court convicted Sakhanh of serious violations of Common Article 3 of the
Geneva Conventions and sentenced him to life imprisonment, a decision con-
firmed by the Svea Court of Appeal.4
The story of Omar Sakhanh is emblematic of a widespread reality that until
now has not been seriously documented nor analysed under public international
law. There is a significant practice by non- state armed groups in zones of armed
conflicts of establishing their own courts to administer justice. This has occurred
in Sri Lanka, El Salvador, Nepal, Afghanistan, Sierra Leone, Colombia, Rwanda,
Congo, Sudan, Kosovo, Syria, Iraq, Turkey, Western Sahara, India, Ethiopia,
Russia, Indonesia, Eritrea, Ukraine, Philippines, Mali, Burma, and many other
places. While the existence of rebel courts is a relatively well- known fact, very
little is known as to the details of how such courts operate. A few works have been
produced examining the operation of insurgent justice in a given conflict, and
some broader works on insurgency have included a section on justice, but there
is no full-l ength academic analysis of rebel justice that studies the practice across
2 CJ Chivers, ‘Brutality of Syrian Rebels Posing Dilemma in West’ New York Times (5
September 2013).
3 Swedish Police Interview of Omar Sakhanh, 27 May 2016: Nationella Operativa Avdelningen,
Förhör med Sakhanh, Haisam Omar, diarienr: 5000-K 132600- 16 (2016) 1189.
4 Prosecutor v Haisam Omar Sakhanh, Stockholms tingsrätt (Stockholm District Court), B 3787-
16, Judgment of 16 February 2017, available in Swedish at <http://w ww.ejiltalk.org/ wp- content/
uploads/ 2017/ 03/ Stockholms- TR- B- 3787- 16- Dom- 2017- 02- 16.pdf> accessed 18 July 2018, with a
partial English translation in (2018) 16 J. Int’l Crim. Just. 403– 424; confirmed by Prosecutor v Haisam
Omar Sakhanh, Svea hovrätt (Svea Court of Appeal), B 2259- 17, Judgment of 31 May 2017; leave to
appeal was denied by the Supreme Court of Sweden, B 3157-1 7, 20 July 2017.
Introduction 3
different conflicts.5 This book takes a first step in that direction, by offering a se-
ries of case studies detailing the operation of rebel courts in a range of conflicts
involving very different non-s tate armed groups.
The very idea of a rebel court presided over by an outlaw judge applying non-
state law may strike many jurists as a string of oxymorons. Irregular armed
groups are typically represented as wholly permeated by illegality, from the very
resort to armed force to the involuntary recruitment of fighters and the means
and methods of warfare used. They are taken to be truly outside of law, and often
are encompassed under a very wide understanding of “terrorism”. International
law broadly has refrained from declaring as illegal the use of force by or against
the state in a national setting, limiting itself to extending to insurgents the same
criminal sanctions for breaches of the laws of war as are applicable to govern-
mental armed forces, and posing few limitations on a state’s ability to criminalise
insurgency under domestic law. The fact that by and large the domestic laws of
states deem illegal the taking up of arms against the established government has
coloured the general legal construction of insurgency even under public inter-
national law. While the fact that the actions of non-s tate armed groups are illegal
under national law undeniably has considerable significance, it is nevertheless
important to analyse the implications of armed and unarmed activities of such
groups under international law for at least two reasons: first, international law
may in fact impose some limits on a state’s freedom to declare illegal what armed
groups do; and second, as illustrated by Sakhanh’s case, the actions of armed
insurgents may well have legal consequences beyond the territory of the national
state, in places that lie beyond the reach of the domestic law of that state.
The legality under international law of actions of non-s tate armed groups will
necessarily depend on the specific nature of these actions. Even when embroiled
in an armed conflict, armed groups do much more than fight. War is the contin-
uation of politics partly by the very same means, pace Clausewitz. Like states,
armed groups in conflict zones very often come to acquire authority over a pop-
ulation and territory and become involved in what can be broadly described as
public administration. The rebel administration of justice thus can be situated
within a larger notion of rebel governance, corresponding to an emerging field of
enquiry which will provide some framing concepts for the analysis offered in this
book (I). In another direction, the rebel administration of justice raises pointed
and challenging questions with respect to the concept of law. Legal pluralism
offers a vision of legal normativity that encompasses a wide range of actors and
practices, and as such stands as an especially promising perspective from which
5 The closest one gets is Frank Ledwidge’s short book on the role of rebel law in counter- insurgency
strategies, which does include some consideration of international law: Frank Ledwidge, Rebel
Law: Insurgents, Courts and Justice in Modern Conflict (Hurst & Company 2017).