Papers by Tilman Rodenhäuser
Identifying non-state parties to armed conflicts becomes increasingly complex. As seen in recent ... more Identifying non-state parties to armed conflicts becomes increasingly complex. As seen in recent conflicts in Syria, Libya, Yemen, or the Central African Republic, turmoil or inter-communal tensions escalate into armed conflicts, armed groups fragment increasingly, and some armed groups operate transnationally. Over the past decade, international jurisprudence developed numerous indicative factors to identify organized armed groups. While recognizing their great value, this chapter proposes to take a step back from these concrete indicators in order to recall broad but fundamental characteristics that any party to non-international armed conflict needs to have under international humanitarian law. It is shown that every party to a non-international armed conflict has to fulfil three criteria: it has to be (1) a collective entity; (2) with capabilities to engage in sufficiently intense violence; and (3) internal structures sufficient to ensure respect for basic humanitarian norms. Building on this basic understanding, the chapter provides an analysis of two questions that are highly relevant in contemporary conflicts but understudied: First, what link needs to exist between different armed groups in order to be considered one party to a conflict? And second, at what point can two or more groups that operate in different states form one transnational party to conflict?
The Paris shootings and France's reaction have once again triggered debate on states' right to se... more The Paris shootings and France's reaction have once again triggered debate on states' right to self-defense against attacks by non-state actors (see here, here, or here). Discussions normally focus on jus ad bellum issues, such as the 'unwilling or unable' test or when a threat is imminent. A question that receives strikingly little attention is whether the invocation of the right to self-defense against a non-state armed group under jus ad bellum would provide a sufficient legal basis for attacking this group by military means. As Marco Milanovic pointed out on this blog, the lawfulness of strikes against a non-state entity does not only depend on jus ad bellum but also on a second layer of legal examination: does the attack form part of an armed conflict and complies with international humanitarian law, or is the attack in questioned governed by international human rights law and possibly infringes on the targeted person's right to life? This post examines how the use of military force in self-defense against non-state armed groups may be justified under jus in bello. France's president Hollande has made it clear that he considered the Paris attacks an 'acte de guerre' and that France is now engaged in a war against terrorism. Political rhetoric aside, what he probably meant is that he considers France to be engaged in an armed conflict with Daesh. As Daesh is a non-state entity, this conflict must be non-international. For international lawyers, he seemed to state the obvious. Reportedly, France joined the US-lead anti-Daesh coalition in 2014. This coalition initially supported the Iraqi government in its non-international armed conflict (NIAC) against Daesh. When France expanded its airstrikes from Iraqi into Syrian territory in August 2015, this could probably be considered part of a spillover of the conflict that commenced in Iraq. As France's recent attacks against Daesh form part of the same conflict, IHL applies to them and such attacks appear lawful as long as they comply with applicable IHL. Nonetheless, the increasing involvement of states in 'self-defense' operations against non-state actors sparks the question of under which conditions this use of force falls under the scope of IHL? Only in that case could aerial bombardments against military targets be lawful. Following the seminal Tadic formula, a NIAC exists if there is 'protracted armed violence between governmental authorities and organized armed groups or between such groups'. The 'protracted armed violence' requirement has been interpreted as 'referring more to the intensity of the armed violence than to its duration' (ICTY, Haradinaj et al, 2008, para. 49). This suggests that the NIAC threshold could be met relatively quickly if sufficiently intense violence occurs between the parties. Yet, a NIAC requires more than isolated or sporadic acts of violence, meaning that even intense isolated acts of violence, such as aerial bombardments or a terrorist attack, can barely trigger an NIAC instantly.
Recent years have seen an unprecedented uprising of people against despotic regimes or masses sta... more Recent years have seen an unprecedented uprising of people against despotic regimes or masses standing up to claim fundamental rights. The ‘Arab Spring’ is the most prominent example of such events. States regularly respond to internal disturbances or tensions by arresting large numbers of people, or by the use of excessive force. This article examines how international law addresses situations of internal disturbances, which do not amount to non-international armed conflicts. It essentially raises the question if fundamental standards of humanity exist that apply at all times and to all actors involved in internal violence - irrespective of the classification of the situation as an armed conflict or the invocation of a state of emergency. Due to the importance of the protection of detained people in such situations, this article focuses particularly on the prohibition or arbitrary detention, the right to fair trial, and the right to humane treatment.
Innovative instruments intended to regulate the private security industry at the international le... more Innovative instruments intended to regulate the private security industry at the international level, such as the Montreux Document and the International Code of Conduct for Private Security Service Providers (ICoC) and its Association (ICoCA), have emerged over the past years. While addressed to different actors, the Montreux Document and the ICoC share the principle objective of enhancing private security company (PSC) compliance with applicable rules of international humanitarian law and international human rights law. However, effective implementation remains a challenge. One reason is that the potential synergies between the two processes may not yet be fully appreciated. This paper provides a detailed comparison between good practices contained in the Montreux Document and the ICoC principles. In particular, it examines to what extent states may build on the ICoC and its Association in order to regulate the provision of private security services effectively and thereby implement good practices identified in the Montreux Document. The paper recommends that states include ICoCA membership in their national authorisation or hiring processes. The principles of the ICoC and the governance mechanism established by the ICoCA can complement or even be an essential component of a state’s effort to regulate PSCs in accordance with Montreux Document good practices.
Starting with peaceful protests of people demanding democratic reforms and fundamental rights fro... more Starting with peaceful protests of people demanding democratic reforms and fundamental rights from the regime in Damascus, the Syria crisis developed into a full-fledged civil war causing large-scale death, injury, and displacement. During the first year of the crisis, violence in Syria was marked by the brutal crackdown of regime forces on protesters. Confronted with a high degree of violence from state forces, opposition groups gradually organized politically and militarily. This article focuses on international legal obligations of armed opposition groups in the course of this crisis. Such obligations are clearly contained in international humanitarian law, and arguably also in international human rights law. In order to determine the applicable law, the classification of the situation as either an armed conflict or one of internal tensions and disturbances is fundamental but controversial. This article examines at what stage of the crisis international human rights obligations and international humanitarian law obligations of non-state armed groups became pertinent, and provides reasons why this is the case. It shall be argued that even before the Syria crisis turned into a non-international armed conflict, opposition groups were bound by fundamental rules of international human rights law. In addition to these rules, all parties to the armed conflict became bound by international humanitarian law once the situation reached a sufficient degree of violence, and the non-state groups a sufficient degree of organization. By examining the Syria crisis, this article shall show what these abstract criteria mean in practice.
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Papers by Tilman Rodenhäuser