The administration of justice by armed non-State actors (ANSA) is a frequent feature in armed conflicts and has existed for decades. ANSAs often try their own forces, enemies and civilians, and some of them may be willing to provide certain international law guarantees in the processes they carry out.
On 22 November 2017, Geneva Call held the second edition of its Garance Talks to discuss three related issues: i) the legal basis for the establishment of courts and judicial processes by ANSAs and in territories controlled by ANSAs; ii) deprivation of liberty by ANSAs, including the treatment of detainees; and iii) the procedural safeguards – rights and legal protections of detainees. Importantly, the meeting brought together legal experts as well as specialized agencies to discuss the challenges faced by ANSA when attempting to abide by international law. Three representatives from ANSAs were also present and were able to provide concrete examples and challenges directly from the field; a high commander from the Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo (FARC-EP), a judge from an area controlled by the Free Syrian Army/Southern Front and a judge from a territory controlled by the Sudan People’s Liberation Movement-North (SPLM-N).
The report, which can be accessed here, includes a legal analysis on the topic, some examples of selected challenges that ANSAs may encounter when attempting to comply with the law, such as the notions of independence and impartiality of their judicial bodies and the situation of foreign fighters in Syria, and the abovementioned views from the field.
Three main conclusions can be drawn from the discussions held. Firstly, when an ANSA does not have the capacity to respect fair trial guarantees, it should not carry out judicial process and alternative mechanisms should be sought. Secondly, when the structure of the group is variable and unstable, it should only carry out judicial processes as long as it has the capacity to do so. And thirdly, when the ANSA has the actual capacity to carry out judicial processes in accordance with the guarantees recognized by international law, then everything feasible should be done to respect these guarantees in full. ANSAs are encouraged to look for external support in their efforts to respect humanitarian norms related to the administration of justice.
The first edition of the Garance Talks took place in 2015 on the issue of the “positive” legal obligations of ANSAs. The report can be accessed here.