Criminalizing Acts of Rebel Governance as War Crimes

Abstract This article explores whether it is appropriate on legal and policy grounds to criminalize as war crimes the acts of governance performed by non-state armed groups controlling territory. Using the administration of justice by armed groups and the Al Hassan case before the International Criminal Court as a reference point, it sheds light on the problems raised by the adoption of an overly broad definition of the war crimes’ nexus to the armed conflict. When the definition of ‘nexus’ is stretched to cover also rebel governance activities, the outcome is at odds with international humanitarian law’s provisions and nature. This approach also has detrimental consequences, including exposing non-state armed groups to unfair and asymmetric criminalization. This article submits that acts of rebel governance should not be criminalized as war crimes — other legal frameworks may be more suitable from a legal and policy standpoint to compel armed groups to comply with international standards and engage with them fruitfully.