Beyond Compliance: In Conversation
What does everyday life during war and armed conflict look like? How do ordinary people engage with armed actors? And how can the law contribute to protecting civilians? Join Katharine Fortin and Florian Weigand in their discussions with leading academics, researchers, and practitioners working and conducting research in this area, shedding light on armed groups, civilian protection, and international law.
Beyond Compliance: In Conversation
S1 EP6: Armed Groups & Counter-Terrorism
In this episode, Katharine and Florian speak to Sophie Haspeslagh from Kings College London and Gloria Gaggioli from the University of Geneva about their research on counter-terrorism law, its mechanisms, effects and how it links to civilian agency and international humanitarian law. During the conversation, Sophie and Gloria provide insights on how ‘listing' affects armed groups, civilians, everyday life and peace processes.
Cited documents:
Haspeslagh, Sophie, Proscribing Peace, Manchester University Press 2021
Haspeslagh, Sophie, The ‘linguistic ceasefire’: Negotiating in an age of proscription, Security Dialogue 2021, Vol. 52(4):361-379
Gaggioli, Gloria & Sobol, Ilya, Proscription and group membership in counter-terrorism and armed conflict: areas of tensions betwen criminal law and international humantarian law in Fortin K & Heffes, Armed Groups and International Law: In the Shadowland of Legality and Illegality, Edward Elgar 2023
Guest bios:
Sophie Haspeslagh is a lecturer in International Relations in the Department of War Studies at King’s College London. Her research focuses on the impact of counterterrorism on conflict resolution, the transition of armed actors away from violence and the international relations of non-state armed groups. She holds a PhD in international relations from the London School of Economics and Political Science and a Master's in international relations from SAIS Johns Hopkins University.
Gloria Gaggioli was the Director of the Geneva Academy from 2020-2024 and is an Associate Professor and Vice-Dean of the Law Faculty of the University of Geneva. She is also member of the board of Geneva Call since August 2019. Her work focuses notably on issues related to the interplay between international humanitarian law and international human rights law, the right to life and the use of force, including the conduct of hostilities, law enforcement and self-defence.
The Beyond Compliance Consortium is a co-productive, socio-legal research partnership that traverses the fields of international law, conflict studies, humanitarian protection work and human rights policy, and brings together these communities of scholarship and practice with people with lived experience of conflict. It is funded by UK International Development. The first series of this podcast series is also funded by the Dutch Research Council (NWO).
Katharine Fortin is an Associate Professor in human rights law and international humanitarian law at the Netherlands Institute of Human Rights, Utrecht University.
Florian Weigand is the Co-Director of the Centre on Armed Groups.
Beyond Compliance in Conversation is a podcast series from the Armed Groups and International Law blog. I'm Catherine Fortin, Associate Professor in International Humanitarian Law and Human Rights Law at Utrecht University.
SPEAKER_02:And I'm Florian Weigand, Co-Director of the Centre on Armed Groups.
SPEAKER_03:In this podcast series, we'll be discussing issues relating to the promotion of restraint by armed actors, including strategies to reduce civilian harm, and the ability of civilian communities to contribute to a compliance ecosystem, which is defined not only by restraint, but also protection.
SPEAKER_02:In this first season of the podcast, we'll be having conversations across the disciplines on the concept of civilian agency, armed groups and international law.
SPEAKER_03:We will start the series by looking at what the term civilian agency means and the different legal issues that it connects to, including the principle of distinction, the threshold of international humanitarian law, the relationship between international humanitarian law and human rights law, and civilian protection.
SPEAKER_02:And we're going to talk about interdisciplinary collaboration and ideas for new research.
SPEAKER_03:Well, we've got two guests with us today to discuss in this episode the topic of armed groups, counterterrorism and civilian agency. And it's the setup that I really like, which is that one of our guests is a lawyer and one of our guests is a non-lawyer, which means that I'm not in a minority for once. And we can get a good interdisciplinary conversation going about different strands of research in this field. So Sophie and Gloria are two guests. Please, could you both introduce yourselves and tell us a little bit about your background?
SPEAKER_00:Sure. My name is Sophie Haspisler. In terms of my background, I started off really as a practitioner, I guess, as a peace practitioner working on supporting peace processes, conflict resolution, dialogue processes. I worked both for the UN and for international non-governmental organizations and some think tanks in a range of contexts, in Colombia and Algeria and then I was affected by the issue I ended up doing my research on so I think the listing of armed groups and the implications that was having for mediation processes and support processes to dialogue with non-state armed actors that are listed we were encountering challenges when I was working with conciliation resources and I was the head of policy there. And so we started trying to understand and look into the research on this topic. And there wasn't that much. And so I ended up doing a PhD at LSE on the topic. And that ended up becoming a sort of a central research blank in my book. And along the way, I became an academic. So I joined the American University in Cairo, where I was based as an assistant professor for few years. And now I'm based at King's College in the War Studies Department as a lecturer in international relations. So that's me. That's great.
SPEAKER_01:That's fascinating. Gloria, your turn. All right. Hello, everyone. So my name is Gloria Gaggioli. I'm an associate professor in international law at the University of Geneva. So I joined the University of Geneva in 2014. And a few years ago, I launched a research project, which is called Com So the objective of this project is really to bridge two different areas, international law, especially international humanitarian law and human rights law, with social science more broadly. So the idea is that indeed social scientists can help us better understand some concepts that we are using in international law. And also international lawyers can help identify some gaps, research gaps, for social scientists. So that's the idea behind this project. Then I can say also that before joining the University of Geneva, I worked as a legal advisor for the International Committee of the Red Cross, but that was more than 10 years ago. And also that I Until recently, I was the director of the Geneva Academy of International Humanitarian Law and Human Rights, which is a joint center of the University of Geneva and of the Geneva Graduate Institute. So we focus at the Geneva Academy really on armed conflict situations from an international law perspective. The idea being that different international legal frameworks complement each other in bringing the adequate protection to victims of armed conflicts. So broadly speaking, I can say that What is particular in my research is that indeed, I do believe that we have to join forces when we look at different international legal frameworks to provide an adequate protection. And that is also true in the field of counterterrorism.
SPEAKER_02:Thank you, Gloria and Sophie. I'm really looking forward to this. Sophie, you mentioned already in your introduction your recently published book called Prescribing Peace, How Listing Armed Groups as Terrorists Hurts Negotiations, which came out in 2021 with Manchester University Press. I was just wondering, could you maybe elaborate a little bit more on the kind of research that you've been doing for this book and the findings quite generally, and perhaps linking it back to your very practical experience that you mentioned when introducing yourself?
SPEAKER_00:Yeah, I think maybe I'll start off with a story to explain how I got particularly interested in the topic. So I was working in Colombia back in 2003. I was working for the International Crisis Group and President Álvaro Uribe Vélez was in power and the previous peace negotiation with the FARC had just collapsed and all the talk was of terror and terrorism, right? In one particular speech, he used the root word terror like 56 times Any idea of peace process, dialogue, negotiation, whatever, was completely unfathomable and impossible. and, you know, off the table. And fast forward to 2012, and I'm about to embark on my PhD, and I'm realizing, you know, through my connections in Eastern Colombia that there have been talks between the Colombian government and the FARC, and that some, you know, formal negotiation process is about to kind of become public and formalized. And so I was really taken by the story of how you get from here to there, this impossibility of this idea that you don't negotiate with terrorists, but actually you do. And how do you do it? And so the book, really what it does is that it looks at listing of armed groups around the world. It really traces how we've come to where we are at now, where more than 50% of, you know, armed groups and conflicts worldwide are listed as a terrorist organization. So many, you know, conflicts have been reframed as wars against terrorism. And so what the book tries to explore is how that impacts on peace processes and what it does. And I guess some of the core and central arguments really show that it has a very detrimental, very negative effect on it, which is not necessarily surprising. I can go much more into detail in our conversation of what actually happens. But I guess from a legal perspective, which I wanted to raise in our exchange with Gloria, which I think is really interesting, is how this kind of post-9-11 framing has really shifted the boundaries in terms of law in such a range of contexts. before prescription regimes were very much unilateral and bilateral, right? So you've always had them. You've always had these lists of designated terrorist organizations, whether by the US or the UK or, you know, other governments. But what 9-11 really changed is that it was integrated in the multilateral system, right? And after 9-11, it was the first time that Chapter 7 of the UN was used, this notion of self-defense against a non-state armed actor. And I think that really goes to the crux of our conversation today, because it really changed the way both these actors and their violence and everything, all of that is perceived and framed, right? And not only did it embed it in the multilateral regime, but it encouraged all governments, all regional bodies, et cetera, around the world to develop their own listing regimes. So it kind of took on, you know, a much kind of bigger role, I think, in our understanding and our framing of conflicts, but not just at a narrative and symbolic level, but also in very material terms. And I guess that's what the book traces as well, is both the material and the symbolic consequences of these listing regimes.
SPEAKER_01:Maybe may I jump in the conversation? I found very interesting what you just said. So the approach of the UN changing really also after the 9-11 attacks. And indeed, actually, in terms of sanctions, we can see that before the 9-11 attacks, we had sanctions against Usama bin Laden and the Taliban being in place, but not against Al-Qaeda as a terrorist group. So this idea of having, you know, Al-Qaeda and different international networks being qualified as terrorists is something that increased significantly after the 9-11 attacks. And also in terms of criminalization at the domestic level, actually, it was not so common to have terrorist offense before the 9-11 attack. So this is something that was prompted by the resolutions of the Security Council requiring from states to criminalize terrorism, international terrorism, and groups as such designated as terrorists. And I think that many of the problems that we are seeing nowadays is linked to this idea that a whole group is a terrorist. We don't look so much at the activities, but we say the whole group is a terrorist. So I guess also in terms of negotiation, that might be an issue then because because it's not so much looking at the activities, whether someone beheaded some civilians or conducted attacks against civilians, but it's really about simply belonging to a certain entity.
SPEAKER_00:Can I jump in? Because Gloria, you're exactly right. So both on the actions versus the actor. So I guess that's a big point of the book is that what the listing does, it amalgamates the act of terror with the actor, you know, and it kind of brings it together and makes it very hard then to separate and to talk about behavioral change or to talk about change, you know, for the matter. But your point you're making on Afghanistan and the Taliban is key because Afghanistan and the Taliban were regime they were a state and so that's why there were sanctions against them and it's that so it's that that was then shifted to the non-state actors if that makes sense later on post 9-11 so that was a key conduit of the shift because listing is a type of targeted sanction right it is it is a smart sanction it's exactly that but the case of the Taliban because Florian can come in on that very much is fascinating because then the regime that was associated with the Taliban was then linked to Al-Qaeda. And then when they realized the impact that was having in the context of Afghanistan, the implication it meant for possible dialogue, etc., then the listing was one of the only listings that was separated, right? And then you had a kind of delisting of particular actors.
SPEAKER_02:Absolutely fascinating. And loads of questions coming to my mind, both in terms of Afghanistan and the implications. But maybe as a non-lawyer, one kind of very basic questions for both of you. what does listing really mean and how does it happen and how do groups or states get unlisted? Like what's the technical process really here? And you've already, elaborate a little bit, it has changed over time, but what are the mechanisms and how have they developed?
SPEAKER_00:So I guess it depends very much on the listing regime and which one are we talking about, a national one, international one, regional body, etc. Some of the similarities I would say are that basically a group is added to a list and the decision on who to add or which group to add tends to be very much in the executive power rather than the legislative power um but let's say for instance at the eu level or you know etc you need uh approval obviously of other member states and so that's also the case when it comes to delisting i'm mentioning that because listing is very easy delisting tends to be much more challenging now depending on the regimes and i'm sure gloria you can come in on that because i'm not a lawyer um But obviously criteria are going to vary. You know, there's quite a lot of literature as well that shows that the UN lists are also deeply influenced by the US lists, you know, so how kind of particular, whether these are individuals or groups ending up on the lists and why. There's been a lot of work over the last 20 years to try and have much more oversight, also much more review, right? So there are people who don't even exist or groups who don't, you know, on some of these lists. But also there's very little From a more political level, which I guess is where I'm coming at it from, there's absolutely no clarity on linking, say, behavior to the presence on the list, right? It's not at all like, so for instance, ETA, the group in the Basque country that, you know, unilaterally demobilized, in effect, and is no longer, you know, in operation, is still listed by across the European Union. for instance, right? It's very rare for a group to come off the list. The FARC, the non-state armed actor that I focused quite a bit of my research on, is a very unique case of having been delisted both by the EU and by the US.
SPEAKER_01:Yes, if I may jump in regarding also the system of sanctions at the UN level. So now we are talking really about administrative sanctions. And indeed, I mean, from a human rights law perspective, there is a lot to say about the issues and challenges related to these sanctions. So the UN can decide to sanction certain individuals or entities. And indeed, the process is a political process, as Sophie was mentioning. So basically, any state can say, well, this individual is actually a person that we suspect of terrorism, so we want to prevent terrorist acts, we want to add this person on the list of persons who are sanctioned. Then this becomes a list that is used by the international community as a whole. So the other states somehow have to accept this and to apply the sanctions against these individuals. The sanctions can go very, very far. So you have the prohibition to travel. So you have to stay in the country where you are. You have the issue of assets freeze. sometimes for very, very long periods. And additionally, you have the arms embargoes that can be applied as sanctions. What we can see is that some individuals have been under these sanctions for many years and so much that we can say that actually it's not just an administrative sanction. It is equivalent to a criminal sanction without having a fair trial, without having judges deciding impartially that this person indeed is a problem and has committed crimes and therefore you apply criminal sanctions. So we call them administrative sanctions. You have no judicial authority oversight, which is highly problematic, you have also no, yeah, you have no effective remedy. So it is true that there were progresses being made at the UN level. So at the beginning, you had also no process for the delisting. Imagine that someone could be listed. And even if that person was convinced and was saying, I did not commit any terrorist act, I'm not linked to terrorism, there was no way to be delisted. You had no effective remedy at the domestic level, because at the domestic level, the judges would be saying, well, you know, it's the UN, it's a decision under Chapter 7, and therefore it prevails. And at the UN level, you have no court providing such an effective remedy. So the progresses that have been made is that now you have a numbers person trying to mediate and to support the individuals wanting to be delisted. But still, there is a lot of room for improvement in terms of rule of law, the UN is not really giving the examples with such type of sanctions. And regarding entities, I would like to highlight that, again, here we have no process for delisting entities. So it's quite crazy that you can note that there are some entities which do not exist anymore and they're still sanctioned. You see my point. So there is no follow-up. There is no monitoring about this system of sanctions.
SPEAKER_02:Thank you. That's a super helpful overview. So basically, it happens once, and then it comes with all sorts of long-term effects, but we don't really know how it's going to play out. I was just wondering, so in your book, you mentioned kind of, of course, the impact on peace processes, and of course, it probably affects people individually if they're listed and have their assets frozen, and it affects states or non-state actors. But does it have any implications for people on a much more localized level of a conflict? Like, does it really impact conflict dynamics for people in communities? Does it change what they can do or can't do? And in what way do you think does it shift conflict dynamics if an actor or an individual gets listed?
SPEAKER_00:Yeah, I would say hugely. So maybe I'll start with the, towards the end of your question, then go back more to the sort of civilian agency points. So I think as Gloria was highlighting, right, there are very direct material material consequences to being listed, which tend to be more focused on asset freeze and travel bans. There's some listing regimes that also criminalize any third party contact with a listed group, right? So that means, which is kind of the reason, one of the reasons I started researching this, because it means if any NGO or organization or individual or, you know, even a citizen contacts a group to try and encourage them to, you In the US, for instance, this comes with a potential 15-year prison sentence, right? In the UN and the EU context, the criminalization isn't present when it comes to third-party contact, but there's a lot of self-censorship involved. And that's where my research also has shown that there's a lot of actors who are just opting out, right? And that's my ongoing research at the moment is looking at some of that much more kind of global level, really, we're coming to the conclusion that prescription is really, you know, affecting mediation worldwide and in a very negative way. And that's kind of very obvious. So it's kind of clearly affecting a lot of actors, organizations, etc. In terms of the conflict dynamics, it's having a really big impact on because this is a deeply relational situation. So with prescription, what basically happens is that a huge portion part of the narrative the discourse around the conflict is one by one side right so it's the state who's able to completely delegitimize its opponents as terrorists and that comes especially if it's in an international listing it comes with a lot of support it comes with you know huge legitimacy it really bolsters the state it really heightens the asymmetry if you want between the the actors right but that also comes with real material consequences so for instance in terms of counter-terrorism support intelligence operations, you name it. So just to give you a concrete example, in Colombia, there was a lot of US support coming in against the drugs war. Well, after the listing of the FARC and 9-11 and all of that, all that money was shifted to war supporting counterterrorism, right? So it really heightened the kind of the asymmetry, the military nature of the war and that sort of thing. So it kind of really changed things. The other thing it really does is that even if a third party contact isn't criminalized necessarily at the international level, it gives huge legitimacy obviously to the state to criminalize any local contacts with the group, right? And it criminalizes any actors who are around or associated with the group. And we see this in so many contexts and conflicts where people who are not at all members of a listed armed group are stigmatized as terrorist sympathizers, are associated with the group. But these are not just words, right? In many, many contexts, this is a direct green light for targeted assassination, killing, you name it. So in Colombia, we definitely saw that. We can see it currently as well, I would argue, in the dynamics in the Middle East, where any association with Hamas is considered to be, you know, just living in the same territory gives a green light light to bombing, right? I mean, it's kind of affecting huge communities, not just a few individuals. So that's obviously a very negative repercussion. And these individuals and these civilians are not the ones with the political possibility to really change that or to kind of, you know, push back on that. However, one of the things that my research really also showed is that where the most innovative, insightful kind of, how to say it, the richness of people trying to think about overcoming these barriers and criminalisation also comes within the civilian realm, right? So, and that's one of the things that I've been looking at as well. Diplomats, representatives of the UN, etc., diplomats from particular governments are engaging less and less with listed actors. What you're seeing is you're seeing a non-governmental actors, grassroots movements, et cetera, et cetera, taking on some of those roles, right? But at huge risks, obviously, but like really thinking through very clever and innovative ways of doing this. So for instance, in Colombia, you had a network called Colombianos Colombianos por la Paz, a group of intellectuals, civil society activists, et cetera. They started to do like a letter exchange with the FARC. So epistolary exchange and through which they got the FARC to commit to like giving up on hostage for ransom to release 40 of their hostages etc etc it was like a lot a very long-term process over two or three years right um so you're seeing both a very negative repercussion you know on on civilian agency but interestingly as well you're also seeing the resistance to that right and you're seeing that agency in action
SPEAKER_03:thanks Sophie that's that's so interesting um And I wanted to invite Gloria to sort of jump in and also share, pick up on some of the same themes. So Gloria, you already mentioned some of the repercussions for individuals who are listed and who have assets freezes or current travel. Sophie was just running through kind of the repercussions for perhaps just more ordinary people and communities and also the difficulty that listing can place on third parties. So for example, NGOs seeking to engage with armed groups either on a peace process or on humanitarian norms and I wondered from an international law perspective um whether you see in your research similar dynamics.
SPEAKER_01:I took note of what Sophie was saying about this question of self-censorship and opting out that you noticed. And indeed, this is also very relevant for humanitarian actors. So in the international arena, we've called that the chilling effect. So it's as if you had a sword of Damocles that is there for humanitarian organizations because there is the risk that their activities will be seen as supporting terrorists. I will give you very concrete examples. The mere fact of visiting detainees who are portrayed as terrorists can be seen as support to terrorism. Or the fact of bringing food to populations who are living on territories that are controlled by terrorist actors can be seen as somehow supporting terrorists or the families of terrorists and so forth and so on. Even training armed actors, which are designated as terrorists, can be seen as... Supporting them, even IHL training, so training in international humanitarian law, trying to obtain a better behavior of armed groups can be seen as supporting terrorists. So that is highly problematic for humanitarian action. And a lot has been done, I would say, in recent years, because many organizations were vocal about this. Doctors Without Borders were very vocal, the ICRC, Geneva Call. And so some progresses have been made. So for instance, now at the UN level, there is an exemption that has been accepted for the freezing of assets in a resolution 2664 from 2022. So it's already something. Of course, it applies only to this UN administrative sanctions in relation to assets freeze, not all UN sanctions. It does not, of course, apply in relation to criminal prosecutions, etc. for that you have to look at each and every legal system, how it works. But you can see that increasingly there is an understanding that we have to be very careful not to impede humanitarian actors in their work. So these are ordinary people being really affected by those counterterrorism laws. I can also mention medical doctors. Medical doctors have, in some cases, been prosecuted for providing healthcare, medical care to fighters. So there was a famous case in the US, for instance, where an individual wanted to join Al-Qaeda as a medical doctor to provide medical care to the wounded fighters. And he was prosecuted for material support to terrorism. And this is quite shocking from an international humanitarian law perspective, because in IHL, not only you actually encourage, you should actually encourage armed groups to provide medical care to the wounded and sick, but we have also a specific provision that prohibits the criminalization of providing medical assistance to individuals. So that is a direct contradiction if you want, between certain terrorist defenses and international humanitarian law. Lastly, we can say that more broadly, I fully agree with Sophie that actually everyone living in a territory that is controlled by actors designated as terrorists are at risk. Sometimes the mere fact of being in those territories is seen by the government as a kind of acquiescence or agreement with the armed actor. So that is really problematic. Also the fact that when you live in a territory that is controlled by groups designated as terrorists, you might have to pay taxes to those groups. And the fact of paying taxes can be seen as financing of terrorism. So that is an issue that is underexplored, I think, in international law, because actually international law says nothing about the taxation by organized armed groups. And indeed, in some cases, it can be even seen as positive that organized armed groups are taxing because they might use that, you know, to make sure that education continues in the territories they occupy or they control, which can be used to provide medical care to the populations living in these areas. So we see that it's a real problem for the populations as a whole. So not only members of minorities or journalists who might be prosecuted for the glorification of terrorism, if what they say is seen in a way or in another as a giving value, let's say, to these terrorist acts, even if they do not directly induce acts of violence. So indeed, that's a problem for everyone, I would say, not only for members of
SPEAKER_00:armed groups. Can I jump in on something that Gloria said? Because I think you're really right that in the humanitarian sector, there's been actually quite a lot of organization on this issue. And obviously, because the listing can strains very directly, you know, the possibility of providing humanitarian support. So in a way, it is the sector that's organized the most to try and kind of push back and get some form of exemptions, right, with a range of actors, but particularly at the UN level. And this is interesting to me because I think a lot of sort of conflict resolution organization, peace building organizations have also tried to take inspiration from that and also try and see, okay, how can you bring, come together and push for a form of exemption of like, you know, if you're engaging with this group to, you know, try and convince them, like you were saying, you know, upholding IHL, but also like, you know, moving away from violence, finding other strategies, et cetera, et cetera. But having looked at this issue from, you know, kind of quite a macro level, because when I started looking at this, obviously I was thinking about it as a kind of third party actor and how it was affecting us and all of that. But then, you know, studying it more and more and over the years, I was realizing, God, that it was a very self-centered view of myself looking at this issue from that way, right? Because actually what the listing does, and that's kind of going back to the points I was making at the beginning, is that it has such a deep effect on the nature of the conflict, that all this tinkering around the edge the exemptions and things like that, is really not dealing with the big picture, right? And one of the big picture is that we're moving further and further away of the possibility of resolving these conflicts through political ways because of the framing and the listing of these non-state actors as terrorists, right? You know, the possibility of even starting dialogue and negotiation appear completely impossible because these actors have been pitched and framed as terrorists for so many years because we've made it much harder for anyone to engage with them as well to have any shift of perspective or world views or that sort of thing right and so that's just going back to my work on Colombia that's why I was particularly interested in like well how did it work in that context right how was the shift possible and so tracing the particularly the discourse and the linguistics in the case, what I saw was that, well, even if kind of delisting before the negotiation happened wasn't really feasible, you know, the US or EU context, what did really change things was when the government changed its discourse and its framing of the armed group, basically, and stopped calling the FARC terrorist. And so it's something I describe as a linguistic ceasefire, right? So we talk about ceasefires on the battlefield, but what happens in terms of the framing, the language and the discourse and I know this is a bit different than the legal conversation because I'm talking about words right not necessarily laws but I think this would be a really interesting aspect for us to explore because the laws were still there but so how can you shift the words so that then you know the the legal element can also shift uh with time basically because it's only afterwards that the delisting was was possible and after the peace agreement that in Colombia the normalization the political normalization of the actors was possible as well and the kind of of decriminalization and all of that.
SPEAKER_02:No, thank you. I really want to get back to the kind of political resolution and the implications for that. But maybe just one question before that. I couldn't help but notice, Gloria, when you were talking about people, you were usually talking about ordinary people operating in these areas. And as this kind of podcast, at least in this season, is roughly about civilian agency, it made me wonder, actually for both of you, to what extent you find this terminology helpful or rather distracting. And it made me particularly wonder because, Gloria, you were saying basically Basically, if people live in areas that are controlled by certain armed groups that are listed, it kind of makes everyone basically an affiliate of that actor by paying taxes, by providing food and so on. So what does that do to the concept of the civilian from a legal perspective in those areas? And perhaps linking it back to, Sophie, what you were saying, what kind of space do they then actually still have? So kind of what's the agency in that space? If you kind of lose your, I would say, as a non-lawyer, your kind of civilian status, more or less, by operating in areas that are declared to be run by a terrorist organization.
SPEAKER_01:Okay, I'll start then. Perhaps I want to highlight first that under international humanitarian law, you have no such a thing as a terrorist group, right? So the wording of terrorism or terrorist group rather is extraneous to international humanitarian law. So this is not something that you find. So you would treat under international humanitarian law all organized armed groups in the same fashion. So now in terms of... defining the persons who live in the territory that is controlled by an organized armed group from an international humanitarian law perspective, there is no doubt that these are civilians, just to be sure. So these are civilians. But actually, the terrorist offenses do not focus only on fighters. So indeed, you can have criminal prosecutions for support to terrorism in relation to civilians, right? So this is why I mean, all these counterterrorism laws affect not only fighters, but they do affect also civilians. In relation to the term of civilian agency, I'd like to say that actually I didn't know it before knowing Catherine Fota. So I learned about civilian agency, this concept with Catherine Fota. And you don't find that concept in international humanitarian law. So it's not an internationally legal concept. And I cannot say that so far I've used it in my research so much, but I'm seeing the added value of the concept. So it's not because it's not in law that it's not useful. I think it's very useful, actually, because it shows that actually civilians are not just victims of armed conflict. In international humanitarian law, when you talk about civilians, they are somehow victims that you want to protect when they are in the power of the enemy. Or if you think about the conduct of hostilities, you think that you have to make sure that you take precautionary measures so that civilians do not get killed so much as collateral damages, so that the collateral damages are not excessive. But it's always this conceptualization of the civilian being potentially a victim. With the notion of civilian agency, it better translates the concept complexities and the different roles that civilians have in an armed conflict situation. How can they shape the evolution of the conflict? How can they play a role after the conflict? And so that's why I think it's a very useful and interesting concept.
SPEAKER_00:Yeah, I mean, I agree with Gloria. I think it's really helpful. And I think, Catherine, your work on that, on civil agency, really shines a light and helps explain certain things that you see in a lot of contexts, right? So, for instance, going back to the example of Colombia, because that's what I've been talking about, there's so many communities there who've really taken on that agency. Peace communities, communities who've tried to stay out, you know, of the violence happening around them, trying to impose their own rules and as far as they could to try and stay, you know, protect their space, right? But in an active way. So again, like what Gloria was saying, it really helps moving away from this idea of civilians that need protection to the civilians themselves who are enabled and able to both act, but also, you know, protect themselves and others and maybe also change the course of the conflict and the political level as well I've been really taken recently by notions of agency and my ongoing work that I'm trying to move forward is not so much on civilian agency but is actually on the agency of non-state armed actors in international relations so I'm trying to understand how they do international relations and again that's a big question of agency when we think of international relations we think of states we think of diplomatic actors we look much less at the agency and the international realm of other actors right so you have obviously a lot of work in literature on on you know transnational activism and things like that right but I think especially when it comes to peace processes conflict resolution exiting from violence etc we've not looked enough at the role being played you know by these other relations by the agency of these different groups throughout those different processes.
SPEAKER_03:That's a really interesting angle, Sophie, the idea that you're not looking at the agency of the individuals, but you're looking at the agency of the collectivity. And I think that that brings a whole, particularly if I even try and translate that into a kind of legal research question, I think that takes you into the at a legal level and one thing that's often struck me about the legal personality of armed groups is it's very difficult to identify any rights that they have so the legal personality that the that the legal framework kind of allows them tolerates is one made up of obligations and actually legal personality is generally made up of both but before we um Before we move on, I wanted to go back to Gloria a little bit and pick up because you've already touched really interestingly in your last answer about the kind of tensions, Gloria, between the way in which IHL sees civilians and armed group membership and how there's a tension between that and the way in which counterterrorism law and sees people living under the control of armed groups and armed group membership. And I wondered if you could say a few words about the differences between IHL and counterterrorism in this regard and the way in which the relationship that the two bodies of law either have or don't have. You indicated that IHL doesn't really know the concept of terrorism. At the same time, we know that both bodies of law are applying to the same actors and the same territories. So they inevitably are kind of bumping into each other. And I just wanted to pass over to you to say something about that.
SPEAKER_01:Yes, this is a highly interesting question about the relationship or the interplay between international humanitarian law and counterterrorism laws. The first thing I would like to say about this is actually they don't operate at the same level. So we are talking about very different legal frameworks. International humanitarian law is the law that is regulating armed conflicts. So basically, basically international armed conflicts or non-international armed conflicts. When we talk about terrorism, usually we think about organized armed groups labeled as terrorists, and therefore we are in the realm of non-international armed conflicts. Under international humanitarian law, there is this fundamental principle of equality of belligerence, meaning that the state and the organized armed group, whether it's called terrorist or not, they have the same rights and obligations. So I would consider that actually organized armed groups, whether they are labeled as terrorists or not, under humanitarian law, they have implicitly also rights because based on the principle of equality of belligerence, it's not prohibited, to be very precise, it's not prohibited for them to target and kill enemy soldiers, right? It means that implicitly you could say it's allowed, right? Or at least it's not prohibited. Would you tell our listeners that Catherine's nodding? Right. So that is a fundamental difference between international humanitarian law and counterterrorism laws. Because from a counterterrorism perspective, the mere fact that individuals take up arms and join an armed group is criminal. criminal, they can be prosecuted for murder, even if they did not violate humanitarian law. They can be prosecuted for murder when they kill an enemy soldier in the battlefield. They can be prosecuted for treason in countries that allow it. They can still get the death penalty because that's the most serious offense you can think of, you know, this treason. So you have a completely different mindset. Under IHL, you have this idea that everyone will have the same rules and they might kill enemy combatants. They might target military objectives And it's not an issue. While under counterterrorism law, what is done by states is okay, while on the contrary, what is done by these members of terrorist organizations can be prosecuted. So this leads evidently to tensions between IHL and counterterrorism laws. The big problem is that as they operate internally, at different levels, we don't have really tools to solve these conflicts or these tensions. Let me explain what I mean by that. In international law, we often discuss about the interplay between international humanitarian law and human rights law. And we say sometimes you have conflicts, contradictions, and usually international humanitarian law would prevail as lex specialis, the law that is more specifically adapted to armed conflict. So IHL would prevail. You cannot use the like specialist maxim or logic when you compare international humanitarian law with counterterrorism laws. So, for instance, domestic offenses, because they operate at a different level. So most of the time you will have tensions between the two and we have to work with it. In the rare cases, you might have really counterterrorism laws that are violating IHL. I think I gave an example before with the medical doctors being prosecuted for providing medical care. So that is a violation of IHL. So states have to implement IHL. So that's problematic. You have to change those kinds of laws. But apart from that, you will have many more tensions. So for instance, the fact that you can prosecute members of armed groups for taking up arms can be seen as a serious disincentive to respect IHL. Because whatever they do, whether they do beheadings, whether they attack civilians, or if they take up arms and they respect all the rules of humanitarian law, in any case, they can be prosecuted. So often we say, well, isn't it problematic? Isn't it a disincentive? So with my research team and in particular with Ilya Sobol, we worked a little bit on that in an article on membership. And we went through also the literature on social science on this aspect. What we discovered, which was a novelty because IHL specialists usually say it's a disincentive. What we discovered is that actually the situation is much more complex because everything relies on the cost and benefit analysis for the armed groups, for the members of the armed groups. So saying that having the risk of being prosecuted will make the whole difference as to whether they will comply with the law or not is a simplification. It's an oversimplification. Nevertheless, I'm still convinced that since we don't have so many incentives for respecting IHL, it's already an incentive if you know that, for instance, amnesty laws would be applied after the conflict. This is something that is linked with what Sophie was talking about earlier. IHL has something to say about that because it does recommend the broadest possible amnesties. And indeed, if we consider members of terrorist organizations in the same manner where whether they commit war crimes or they don't, then it empties somehow this recommendation to have amnesties. So this is just to give you one example of tensions. Perhaps I give quickly another one. Another tension is that we see that a number of states tend to prefer now prosecuting based on terrorist offenses instead of prosecuting based on war crimes. So for instance, you have Iraqi courts prosecuting ISIS members for the mere fact that they belong. to ISIS, right, without making any difference whether they kill civilians or not. And that is not ideal, to say the least, from a victim's perspective, because it does not show the gravity of the crimes that were committed. So, unfortunately enough, at least in Western countries now, more and more there is this trend of having a double criminalization So to criminalize both under terrorist offenses and for war crimes, and that is probably... the best way to go about it, although there are also challenges in terms of the length of the prosecutions and so forth and so on. But I mean, that is also a tension that increasingly we give somehow more importance to the counterterrorism framework compared to IHL. And perhaps because I'm an IHL lawyer, I think that we should do the reverse. Even if I fully understand that states have to fight terrorism, that's also based on the duty to protect under human certainly. But I think that the IHL mindset is more favourable also when we want to transition into peace and to negotiate also with the enemy.
SPEAKER_00:It was just from my lack of knowledge of IHL, really. And I was wondering, Gloria, if you could just explain and also, I guess, for the listeners, how was IHL translated from its original sort of inter... country or, you know, wars that were happening between states at the international level to interstate conflicts? Because I think this is kind of really underpinning a lot of the conversation. So it'd be really helpful.
SPEAKER_01:Yeah, that's a very interesting question indeed, because international humanitarian law originally was developed for international armed conflicts. So for conflicts between states. So the whole logic of IHL is based on this idea of having, you know, equals of rings fighting against each other. And it's only after the Second World War that we had for the first time a provision, common Article 3 to the four Geneva Conventions, which would cover non-international armed conflicts. States have always been very reluctant to develop treaty law in relation to non-international armed conflicts because, you know, they consider that what happens on their territory is their own business and they just don't want the international international community to get interested in that. So that's why we have much less provisions of international humanitarian law for non-international armed conflicts. So we just have Common Article 3 that I mentioned and Additional Protocol 2 to the Geneva Conventions. Then, of course, we do have customary law, which allows us to say that most of the rules now of humanitarian law are the same for international armed conflicts and non-international armed conflicts. So what I think is very interesting in your question is that you identified that Indeed, the law of NIACs, of non-international armed conflicts, is a kind of copy-paste, not totally, because there are certain elements that are missing, but somehow we draw analogies a lot from international armed conflicts, while the reality on the ground may, in certain circumstances, be very, very different in international and non-international armed conflicts, and especially this aspect of the privilege of combatants, because in international armed conflicts, you cannot prosecute soldiers for taking part in hostilities. You can prosecute them just if they commit crimes, war crimes. While in non-international armed conflicts you don't have this privilege of combatants. So this is why you have then this tension that we were talking about before that IHL would not prohibit the fact that a fighter might attack an enemy soldier while under domestic law that can be prosecuted. This is
SPEAKER_03:been so interesting and I knew that you guys were going to be fantastic guests because your research is so complementary to each other. So whilst I think all four of us know that we could carry on this conversation for at least another half hour, I'm going to suggest that we wind up and leave it here and leave the further parts of the conversation we haven't explored to another occasion.
SPEAKER_02:Yeah, thank you very much for joining. I really wanted to get back to the political resolution bits and the linguistic ceasefire, but I think I would now recommend all the listeners interested to check out Sophie's book and also beyond that both of your research which we're going to link as usual in the notes of the podcast so if you want to get into more details you'll find it in the notes
SPEAKER_03:This podcast series was made possible due to a combination of funding from MWO, the Dutch Research Council, and the Foreign Commonwealth and Development Office of the UK. UK International Development is the funder of the Beyond Compliance Consortium, an academic practitioner-led consortium involving three universities and six humanitarian and human rights organisations, generating new ways of thinking about compliance and restraint in armed conflict. NWO is the funder of the VINI project, Dangerous Liaison, Civilian Agency, Armed Groups and International Law. Please do not hesitate to get in touch with us if you have any feedback or if you have an idea for an episode. For updates of the Beyond Compliance Consortium, you can follow us on LinkedIn, Beyond Compliance Consortium and X with the handle at beyondcompcons.
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