Over the past few decades, several armed groups involved in noninternational armed conflicts (NIACs) have set up courts and conducted trials.1 These trials have ranged from prosecutions of individuals for war crimes to civil trials concerning ordinary disputes over land or money.2 Examples of such courts include those established by the Communist Party of Nepal-Maoist (CPN-M) in Nepal, the Frente Farabundo Martí para la Liberación Nacional (FMLN) in El Salvador, and the Liberation Tigers of Tamil Eelam (LTTE) in Sri Lanka.3
International humanitarian law (IHL) enumerates specific rights and obligations of states regarding the passing of sentences in an international armed conflict (IAC). However, IHL contains only two provisions-found in Common Article 3 of the Geneva Conventions4 (CA3) and Additional Protocol II5 (AP II)-regarding the passing of sentences in a NIAC. The status of insurgent courts under these provisions is ambiguous. In particular, CA3 does not clearly state whether insurgent courts are legitimate, and, assuming insurgent courts are legitimate, what sorts of procedural protections are expected of such courts. Traditionally, scholars have denied the possibility that armed groups can conduct trials under the IHL framework.6 And with good reason: there have been several instances of insurgent courts abusing fair trial guarantees and meting out rogue punishment rather than just sentences.7 For these scholars, a proper interpretation of IHL leads to the conclusion that only a state can conduct trials during a NIAC.8 Any armed group that establishes courts would be violating IHL, and members of the armed group associated with such courts would be guilty of war crimes.9
As armed groups have increasingly resorted to establishing courts and conducting trials, however, other scholars have highlighted a growing need to account for insurgent courts within IHL. This project to account for insurgent courts within IHL leads to three questions: First, is there any interpretation of IHL that would recognize the legitimacy of courts of armed groups? Second, assuming that insurgent courts could be legitimate within IHL, which fair trial guarantees does IHL require of such courts? Third, even if the first two questions can be answered, what types of trials should IHL recognize as an appropriate exercise by an armed group?
Two scholars, Sandesh Sivakumaran and Jonathan Somer, have separately proposed interpretations of IHL that answer these questions.10 Both their solutions succeed to an extent. Their interpretations legitimize insurgent courts within IHL, offer different ways of defining the judicial guarantees IHL requires of such courts, and authorize every type of trial in such courts.11 However, neither solution is satisfactory. In seeking to Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), June 8, 1977, art. 6, 1125 U.N.T.S. 609, 613-14 [hereinafter AP II]. legitimize insurgent courts within IHL, both scholars ignore undesirable consequences that follow. Specifically, the ultimate goals of both scholars are to improve compliance with IHL and increase humanitarian protection generally during a NIAC.12 Yet both endorse solutions that lead to a lower level of humanitarian protection. In implicitly arguing for a wholesale loosening of the legal basis requirement in IHL, both scholars ignore the impact such loosening would have on state prosecutions of insurgents. This undercuts the founding impulse that motivates the project to legitimize insurgent courts. Next, in proposing different ways of defining the judicial guarantees IHL requires of insurgent courts, both leave the specific list of required guarantees undefined. Finally, in authorizing every type of trial in an insurgent court, both scholars ignore the substantive differences between different types of trials, and the interpretive difficulties associated with each type. …