Introduction
During situations of national crisis, the security services of a State may be pushed to their limit and be unable to protect communities from encroaching violence and conflict. It is not uncommon in these circumstances to see community members join together to attempt to fill this gap and provide security services to their immediate community. Around the world, so-called “community defence groups” perform many roles, from operating checkpoints and conducting surveillance missions to patrolling roads and even participating in combined combat operations with the State. Unfortunately, while many groups perform an important service for their community, many have also been accused of serious human rights abuses or even war crimes. This article examines the circumstances in which a State might be held responsible in relation to wrongful acts of community defence groups operating within the State's territory. It focuses on the relationship between the territorial State and the community defence groups, as the interest in protecting a community from violence is in principle shared by the State and those groups, and in practice this often results in complex relationships of support between the two.Footnote 1
Noting that the nature of community defence groups varies from context to context, the aim of this article is to provide a framework for assessing the particular relationship between the community defence group, the State and the wrongful act, and the potential responsibilities that may arise from this. After providing a background to the phenomenon of community defence groups in the first section, the second section of the article discusses the potential attribution of acts of the community defence group to the State, applying secondary rules of State responsibility.Footnote 2 The third section discusses potential responsibilities of the State under the primary rules of international law, namely international humanitarian law (IHL) and international human rights law (IHRL), in circumstances where the primary wrongful act is not attributable to the State. The examples discussed in this article are predominantly from Africa, but the phenomenon is not limited to that part of the world.Footnote 3
The phenomenon of community defence groups
In Maiduguri, Nigeria, a young man attracted local notoriety in 2013 for pursuing a militant from the group commonly referred to in the media as Boko HaramFootnote 4 “with a stick, capturing him and delivering him to the authorities”.Footnote 5 Others followed his example, joining together to patrol the streets and establish checkpoints.Footnote 6 The group grew and called itself the Civilian Joint Task Force (CJTF), a name that intentionally referenced and indicated the group's complementarity to the State's Joint Task Force that was tasked with responding to the crisis in the northeast. As of 2020, the CJTF is said to have 30,000 members.Footnote 7
In this article, the term “community defence group” is used to describe actors like the CJTF. This label neatly encapsulates three defining features. The first is that the group arises from or belongs to a community.Footnote 8 In defining the broader category of “community-based armed groups”, Schuberth notes their
eponymous embeddedness within the community in which they emerge. The boundaries of the community can be defined (1) by territory – such as an urban neighbourhood or a village; (2) by blood ties – as in a family or clan; or (3) by a shared identity – like in the case of ethnic groups.Footnote 9
By way of example, in relation to the phenomenon of community defence groups in South Sudan, Jok notes that
[c]ommon to all of the groups is their roots in ethnic groups or region. … [T]hey are responses to the localised nature of violence and a suspicion that the state has become monopolised by some ethnic groups while others are excluded, forcing them to rely on their own means of defence.Footnote 10
The community link will often underpin the structure and function of the group and distinguish these actors from business-oriented groups, such as private military and security companies.Footnote 11
The second defining feature is that the group is a “defence group” – it purports to serve a defensive purpose. This mirrors the so-called “conservativism” that is discussed in relation to “vigilantism”: the orientation of the group is towards the (re-)establishment of a form of existing social order.Footnote 12 Johnston, for example, suggests in relation to “vigilantes” that such groups act when “an established order is under threat from the transgression, the potential transgression, or the imputed transgression of institutionalized norms”.Footnote 13 For instance, the group known as the Arrow Boys in South Sudan was formed by Azande men responding to the threats posed to their community by the Lord's Resistance Army in 2005.Footnote 14 This security orientation enables community defence groups to be distinguished from groups whose dominant orientation is political or economic.Footnote 15
The security orientation also reflects that community defence groups are most active in circumstances where a State's own security institutions are not responding well to the threats posed to a community. The groups may have existed prior to a crisis, but then evolve to match an increasing threat. For example, in the northeast of Nigeria, traditional hunter groups were mobilized to respond to increasing attacks against civilian targets such as mosques, schools and marketplaces.Footnote 16 In Eastern Equatoria, South Sudan, community defence groups are said to be organized according to traditional “age sets” whereby young to middle-aged men “assume responsibility for the governance and security of the community for specific time periods”.Footnote 17 These were mobilized during South Sudan's civil war to, inter alia, secure roads and protect the community from looting and violence.Footnote 18 The groups’ foundations in the community often mean that they are less likely to be perceived as a threat to existing political or social structures, and they may receive support from the State for their complementary service to the community. This is a key theme that will be returned to later in this paper.
Finally, the term “community defence group” also highlights that these groups involve a collective enterprise. Johnston expresses this element in relation to vigilantism as the involvement of planning and premeditation by those engaging in it.Footnote 19 Rather than a spontaneous reaction to an imminent threat (perhaps akin to a levée en masse), a community defence group has at least a vague structure that allows for collective actions against a more generalized and not necessarily immediate threat. A community defence group may be, but is not necessarily, an “organised armed group” under IHL.Footnote 20 This article will highlight the implications of whether a group is considered an organized armed group in relation to State responsibility.
In the absence of functioning State security services, there is an obvious appeal to members of the community mobilizing to protect their community. Community defence groups may be in a better position to respond than the centralized government entities, whose personnel may not necessarily speak the local languages or understand well the dynamics of the area under threat. For example, the Titweng or Gelweng (cattle guards) in Bahr el Ghazal, South Sudan, were reported to wield a “greater legitimacy among local communities because of their respect for local norms, relationship with chiefs and elders, and their emphasis on protecting cattle”.Footnote 21 Community defence groups may benefit from existing social structures, informal taxation and other forms of community resourcing,Footnote 22 mystic beliefs about their role and abilities, and an innate understanding of the terrain on which they operate.Footnote 23
Yet, the operation of community defence groups is not without risk. The gaps in the State security services from which such groups operate can mean that in practice, accountability to the State may be weak.Footnote 24 Certain community defence groups have been accused of demanding pay-offs in exchange for turning a blind eye to the behaviour they claim to be addressing, conducting raids against other communities, committing summary executions or vengeance killings of those suspected to be members of opposition armed groups, ill-treating or torturing suspects before handing them over to the police, and/or sexual violence against members of the vulnerable communities which they purport to serve.Footnote 25
The second and third sections of this article discuss the potential responsibility that a State might have in relation to wrongful acts of a community defence group. This assessment depends upon a clear identification of the relationship existing between the State and the community defence group, which may vary significantly between contexts. States may have been involved in the formation of these groups, and have promoted their recruitment;Footnote 26 they may acquiesce to the existence and activities of such groups, but otherwise have no direct involvement; they might actively cooperate with such groups and/or make regular payments to members of such groups; they may provide training, uniforms and/or equipment;Footnote 27 they may engage in the planning and coordination of activities for the group; they may carry out mandatory recruitment into community defence groups;Footnote 28 they may favourably comment on the activities of such groups;Footnote 29 and they may engage the group for the provision of a specific security service, or even formally incorporate the group within the State's own security apparatus.Footnote 30 Understanding these relationships is essential to identifying any existing responsibility, but it is not always easy. The relationships that can exist between States and community defence groups may be complex, non-transparent and evolving.
Attribution pursuant to secondary rules of State responsibility
This section examines the circumstances in which acts of a community defence group may be attributable to the State, pursuant to the principles of State responsibility articulated in the International Law Commission's Draft Articles on the Responsibility of States for Internationally Wrongful Acts (Articles on State Responsibility, ASR).Footnote 31 It will consider situations where a community defence group and/or certain of its members is an organ of the State (Article 4), where the community defence group is exercising governmental authority (Articles 5 and 9), and where the community defence group is acting under the instruction, direction or control of the State in carrying out that conduct (Article 8).Footnote 32
Responsibility for community defence groups or members of community defence groups as organs of the State
Article 4 of the ASR states that “[t]he conduct of any State organ shall be considered an act of that State under international law”.Footnote 33 This extends to “all the individual or collective entities which make up the organization of the State and act on its behalf”.Footnote 34
In principle, a State could legally incorporate a community defence group into the State security apparatus.Footnote 35 This is rare, presumably because there is little advantage for the State to assume unequivocal responsibility for groups outside of its already existing security institutions. Further, for the community groups themselves, direct incorporation into the State's institutions would result in the loss of their independence and potentially also their community-based identity.
The International Court of Justice (ICJ) has in addition considered that in exceptional circumstances, “persons, groups of persons or entities” may be considered an organ of the State even in the absence of domestic incorporation, if there is “proof of a particularly high degree of State control over them”, so much so that the persons or entities operate in “complete dependence” on the State.Footnote 36 The author is not aware of any community defence groups that would fall under this category. The characteristics of community defence groups tend to run counter to absolute State control, including their creation and foundations in the community (suggesting some degree of autonomy) and that they are most active in situations where the State security apparatus is not meeting the security needs of the community (suggesting a possible incapacity for the State to exercise absolute control).Footnote 37 Situations where the State exercises control at a level that results in less than complete dependence are discussed below in relation to Article 8 of the ASR.
An apparently simpler solution for the State than expressly incorporating the whole group would be to incorporate or recruit certain members into the State's existing security institutions.Footnote 38 In November 2020, for example, 400 members of the CJTF were reported to have been formally recruited into the Nigerian Armed Forces.Footnote 39 Yet, even this is not common. Employing members of the community defence group requires a greater financial contribution by the State, including regular salaries and possibly health insurance, pensions and other benefits.Footnote 40 Incorporation of community defence group members may also be difficult as these individuals may not fulfil the educational requirements for recruitment.Footnote 41 In Nigeria, constitutional requirements of geographical representation intended to address overrepresentation of certain regions in recruitment were also reported to be a challenge for recruitment.Footnote 42 Further, a practice of employing community defence group members might be perceived as creating an incentive for their operation.Footnote 43
The domestic employment law of a State will be relevant, as will any regulations that apply to recruitment in the specific institutions in question, to determine as a matter of fact whether members of a community defence group have become employees of the State.Footnote 44
For community defence group members who are also employees of the State, the State will be responsible for their acts “[w]here such a person acts in an apparently official capacity, or under colour of authority”, even if that person is exceeding their authority or contravening their instructions.Footnote 45 This would cover situations where an employee commits misdeeds while in uniform, even if outside of working hours, because of the air of authority that comes with wearing that uniform.Footnote 46 It could also cover instances where an employee is using a security vehicle outside of work operations where the use of that vehicle would also give the appearance of authority.Footnote 47 The “colour of authority” may also extend to off-duty security-related work of the employee with the community defence group, where such work benefits from wide-ranging support or endorsement from the State.Footnote 48 Essentially, the critical question would be whether the activities of the employee, engaged with the community defence group while “off-duty”, can be clearly distinguished from his or her official function.Footnote 49
Finally, the responsibility of States is arguably broader in relation to the acts of community defence group members who are also members of the armed forces during international armed conflicts. Article 91 of Additional Protocol I to the Geneva Conventions provides: “A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed force.”Footnote 50 This is understood by some commentators as a lex specialis rule of State responsibility under IHL whereby the distinction between private and public acts is either not maintained at all or is at least not maintained “in wartime and with regard to acts governed by international humanitarian law”.Footnote 51 That being said, none of the examples of community defence groups discussed in this article were mobilized as a result of international armed conflicts.Footnote 52
Exercising governmental authority
Article 5 of the ASR provides that the conduct of persons or groups that are not organs of the State but which are “empowered by the law of the State to exercise elements of the governmental authority shall be considered as an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.”
For a community defence group's activities to be attributed to the State under Article 5, the group must be an entity capable of being empowered by law to exercise governmental authority. The Commentaries to the ASR make it clear that the definition of “entity” is to be broad: “The generic term ‘entity’ reflects the wide variety of bodies which, though not organs, may be empowered by the law of a State to exercise elements of governmental authority.”Footnote 53 In order to be “empowered”, the group needs to be capable of definition and most likely would require legal personality under the domestic legal framework of the State.Footnote 54 This is not unheard of; for example, the Vigilante Group of Nigeria was registered in 1999 as a not-for-profit organization.Footnote 55
Second, the community defence group must exercise elements of governmental authority. The ASR Commentaries suggest that “what is considered ‘public power’ depends on the society in question, its history and traditions”.Footnote 56 Cameron and Chetail conclude on review of the drafting history, as well as domestic and international law approaches to defining governmental authority, that “it appears that the notion of elements of governmental authority is entirely linked to the exercise of the special powers of the state and not to the general public interest or the goal of a given activity”.Footnote 57 This would likely encompass many activities of community defence group of a policing character, such as manning checkpoints on public roads, arresting persons suspected to be involved in organized armed groups, and engaging in interrogations.Footnote 58 The Commentaries provide the example of private security firms contracted as prison guards and consider that in this capacity they may “exercise public powers such as powers of detention and discipline pursuant to a judicial sentence or to prison regulations”.Footnote 59 It would not, on the other hand, extend to other peripheral activities of community defence groups that do not require “elements of government authority”, such as translating services or community liaison work.Footnote 60
Third, the community defence group must be “empowered by the law of the State” to exercise the governmental authority.Footnote 61 There is some uncertainty about what is required by this. As Cameron and Chetail identify, the expression “by the law of the State” is ambiguous in English because it could refer to a specific law or more generally to a legal order. The French version's usage of the expression le droit interne (as opposed to lois internes) is consistent with the broader interpretation, whereby delegation of authority would be possible provided it was undertaken within the legal order of the State.Footnote 62
The ASR Commentaries do not definitively address “whether such authority must be granted through a concession of legislative power, or, for example, through an executive act, as it could be a contract between a government and a private entity to perform public functions”.Footnote 63 The Commentaries refer to entities that are “empowered by internal law to exercise government authority”, which might be understood to refer to a legislative or regulatory act, but, as mentioned above, they give as an example private security firms contracted to act as prison guards.Footnote 64
The Montreux Document on private military and security companies, a document finalized on 17 September 2008 and to date supported by fifty-six States,Footnote 65 states that under customary international law, attribution would only occur in this respect where private military and security companies are “empowered to exercise elements of governmental authority if they are acting in that capacity (i.e. are formally authorized by law or regulation to carry out functions normally conducted by organs of the State)”.Footnote 66 In its discussion of circumstances where State responsibility might be attracted, it also specifies that “entering into contractual relations does not in itself engage the responsibility of Contracting States”.Footnote 67 If this is to be extended to responsibility under Article 5 of the ASR generally, the circumstances attracting responsibility under Article 5 will be rare, as it would require a State to provide in its laws or regulations for the delegation of authority to community defence groups.Footnote 68
Finally, the wrongful act must have been committed by the community defence group or its member while acting in an “empowered” capacity.Footnote 69 The extension of responsibility to ultra vires acts under Article 7 of the ASR (and the discussion of this provision in relation to responsibility under Article 4, above) is equally applicable here.
Attribution of responsibility for the acts of community defence groups under the instruction, direction or control of the State
Article 8 of the ASR provides for State responsibility for wrongful acts committed if a State instructs a member of a community defence group, or the group itself, to commit that wrongful act, or when groups or their members are acting under the direction or control of the State in carrying out that act.Footnote 70
In relation to attribution on the basis of control, preliminary questions in relation to the degree of control required must be addressed. As is well known and often repeated, the ICJ in the Nicaragua decision considered that the United States’ support for the Contras (a non-State armed group operating in Venezuela) could give rise to legal responsibility on the part of the United States if it was “proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed”.Footnote 71
The International Criminal Tribunal for the Former Yugoslavia (ICTY) Appeals Chamber reached a different conclusion in the Tadić case when examining the internationalization of conflicts, considering that conduct of military or paramilitary groups was attributable where “the State wields overall control over the group, not only by equipping and financing the group, but also by coordinating or helping in the general planning of its military activity.”Footnote 72 The approach in Tadić has been adopted by the International Criminal Court (ICC) in relation to the internationalizing of armed conflicts.Footnote 73 The ICJ continues to prefer and apply the effective control test.Footnote 74 This article will consider both the ICJ and the ICTY's approach.Footnote 75
Overall control of the group
First, as posited in Tadić, the overall control test applies in relation to the State's relationship with military or paramilitary groups. For individuals or groups not organized into military structures, “courts … have instead insisted upon specific instructions or directives aimed at the commission of specific acts, or have required public approval of those acts following their commission”.Footnote 76
Not all community defence groups are organized militarily.Footnote 77 Many community defence groups operate informally and lack an effective centralized command. The Arrow Boys, for example, have been described as “a network of mobilized community members rather than a military-style hierarchical armed organization”.Footnote 78 As described by Koos:
Some overarching positions (e.g., county-level commander, information officer) were established to facilitate coordination between local [Arrow Boys] groups across Western Equatoria. However, these functions were not endowed with commanding power as they would have been in an army or other military-like organizations. Core decision-making power regarding operational decisions and cooperation among local groups remained with the local chairman and, by extension, the traditional community leaders in the village.Footnote 79
If a community defence group is an organized armed group, according to Tadić, its conduct can be attributed to a State if the
State (or, in the context of an armed conflict, the Party to the conflict) has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group.Footnote 80
The “overall control” test is less onerous than the effective control test, but the level of control required is still high and goes beyond cooperation as allies.Footnote 81 Example indicators of a State's overall control over a community defence group might include:
• the State is paying stipends for the members, is providing uniforms and engaging in training activities and is engaged in the coordination and planning of the group's activities;
• the State determines the direction that the community defence group takes – it decides the activities that the community defence group will undertake, and the community defence group depends upon the State to guide it as to what activities to pursue and what not to pursue; and
• funding and other support provided by the State is conditional upon the community development group following the plans provided by the State; the State supervises the activities and operations.Footnote 82
The overall control test does not, however, require that “the particular acts in question should be the subject of specific instructions or directives by a foreign State to certain armed forces in order for these armed forces to be held to be acting as de facto organs of that State”.Footnote 83 As posited in Tadić, the conduct of a group under the overall control of the State is attributable to the State as though its members were “agents” of the State,Footnote 84 and the State is responsible “even when they act contrary to their directives”.Footnote 85
Effective control over the acts
Pursuant to the effective control test, the State is responsible where it directs or has control over the operation in which the wrongdoing has occurred.Footnote 86 This might include where the operation is being conducted according to a plan established and led by the State, the community defence group members accept orders from the State in relation to the operation, and the State has the capacity to change its plans and the community defence group members will respond accordingly.
For example, the description given of the Yobe Peace Group by Kwaja would raise questions of potential responsibility. As described by Kwaja, members of the Yobe Peace Group “are attached to military battalions and deployed to flash points where army battalions are stationed”, and the State is “wholly responsible for the funding, allowance and maintenance” of the group.Footnote 87 It would be useful to understand more precisely what is meant by “attached” and “deployed.” If the group is receiving orders and command from the armed forces for specific operations, its acts during such operations would be attributable to the State.Footnote 88
As with responsibility under Article 4 of the ASR, an additional question arises regarding the extent of the State's responsibility. The State is responsible when it instructs a person or entity to commit the wrongful act. In relation to circumstances where the State exercises control, the situation is less clear. The ICJ refers to the State having control over “operations” rather than acts, which has been interpreted by some to include ultra vires acts committed in the course of the operation.Footnote 89 In the ASR Commentaries, it is suggested that “[s]uch cases can be resolved by asking whether the unlawful or unauthorized conduct was really incidental to the mission or clearly went beyond it”.Footnote 90
Responsibility when exercising elements of government authority in the absence of the exercise by regular authorities
Article 9 of the ASR states:
The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority.
The ASR Commentaries suggest three conditions for attribution under Article 9: that the conduct must involve the performance of governmental functions; that it must be in the absence or default of the State; and that “the circumstances must have been such as to call for the exercise of elements of the governmental authority by private persons”.Footnote 91 As discussed above in relation to Article 5, it is foreseeable that some acts of community defence groups may involve the exercise of governmental authority, particularly those of a policing character, such as manning checkpoints on public roads, arresting persons suspected to be involved in organized armed groups, or engaging in interrogations.Footnote 92 Further, in relation to the requirement of an “absence or default of the State” as discussed in the first part of this article, many community defence groups are created and/or mobilized as a result of the absence of functioning State security operations.Footnote 93
What is more difficult to ascertain is whether the circumstances would be such as to call for the exercise of elements of governmental authority by private persons. The ASR Commentaries suggest that such cases are “exceptional” and that “the principle underlying article 9 owes something to the old idea of the levée en masse” – a phenomenon that is narrowly defined.Footnote 94 Yet, the examples given by the Commentaries of the “exceptional nature of the circumstances envisaged in the article” include situations which unfortunately are quite common – namely, situations of “armed conflict” and situations “where the regular authorities dissolve, are disintegrating, have been suppressed or are for the time being inoperative”.Footnote 95
An additional challenge in identifying the limits of attribution under Article 9 is posed by the reference in the ASR Commentaries to the Yeager decision of the Iran–United States Claim Tribunal. In that case, the Tribunal found
sufficient evidence on the record to establish a presumption that the revolutionary ‘Komitehs’ or ‘Guards’ after 11 February 1979 were acting in fact on behalf of the new government, or at least exercised elements of governmental authority in the absence of official authorities, in operations of which the new Government must have had knowledge and to which it did not specifically object.Footnote 96
If this was applied as a test for Article 9, it would create a low threshold for attribution, namely by the State's “tolerance” of the activities of the group, even in the absence of an assessment of whether the State was capable of controlling the behaviour of the group.Footnote 97 Without a clear definition of the limits of this basis for attribution, it is difficult to entertain detailed analyses of its applicability.
State responsibilities under primary rules of international law
This section addresses the potential responsibility of States that arises from so-called primary rules of international law.Footnote 98 The discussion invites closer examination into the acts and obligations of the State that are triggered by the conduct of community defence groups, even where the primary conduct of a group is not directly attributable to the State. The sources of primary responsibility discussed are IHL and IHRL.
Responsibility for aiding and abetting human rights abuses; or encouraging aiding and assisting IHL violations
Article 16 of the ASR provides that
a State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.
In the words of the Commentaries, there are three elements that would need to be established:
First, the relevant State organ or agency providing aid or assistance must be aware of the circumstances making the conduct of the assisted State internationally wrongful; secondly, the aid or assistance must be given with a view to facilitating the commission of that act, and must actually do so; and thirdly, the completed act must be such that it would have been wrongful had it been committed by the assisting State itself.Footnote 99
The first two elements create a high threshold for triggering responsibility, as they require the assisting State to have knowledge of the wrongful circumstances and to have intended to aid or assist in the wrongful conduct.Footnote 100 In addition, the aid or assistance provided must have “caused or contributed to the internationally wrongful act”. In this respect there is still ambiguity as to the threshold of support that triggers responsibility.Footnote 101 The Commentaries suggest a low threshold, with even “incidental support” potentially triggering responsibility.Footnote 102
The level of intention or knowledge required for State responsibility for the acts of a non-State entity is not clear.Footnote 103 When examining the question of whether Serbia was “complicit” in the genocidal acts of Bosnian Serb proxies, the ICJ considered the test as equivalent to “aiding and abetting” as provided for under Article 16, and that for an assisting State to be responsible, it must be proven that at the time the assistance was provided, the State had knowledge of the genocidal intent of the perpetrators.Footnote 104
It is not clear whether or how IHRL derivates from the aiding and abetting rule provided in Article 16. The UN Human Rights Committee held in 2006 that “a State party is responsible for acts of foreign officials exercising acts of sovereign authority on its territory, if such acts are performed with the consent or acquiescence of the State party”.Footnote 105 It did not, however, make reference to the ASR, and it is difficult to pinpoint whether this was because the Human Rights Committee considers that IHRL provides a modified knowledge/intent standard in relation to the general rule for aiding and abetting, or that IHRL provides an alternative basis for attribution of responsibility, or that responsibility stems from the primary wrong under IHRL (e.g. the obligation to prevent abuses, discussed below). Similarly, in relation to the European human rights framework under the European Charter of Human Rights (ECHR), the European Court of Human Rights (ECtHR) considered in Ilascu v. Moldova and Russia that a State's responsibility could be engaged in relation to the acts of third parties if “the acts were performed with the acquiescence or connivance of the authorities of the contracting State” – however, the Court did not expressly identify whether it was determining that the ECHR's rule on aiding and abetting is lex specialis to the general rule in Article 16.Footnote 106
If the requirement of knowledge and intent from Article 16 is imputed into the test for State responsibility for aiding and assisting human rights abuses of non-State actors such as community defence groups, it is unlikely to be satisfied.Footnote 107 It would require that the State knew, when providing support, that the community defence group was intending on committing the abuses, that it provided the support with this in mind, and that it materially contributed to the wrongful act. It seems highly difficult to prove the wrongful intent of the State beyond reasonable doubt, and contrary to a State's likely assertion that the support offered was intended for lawful activities of the community defence group.Footnote 108
In relation to IHL, Article 1 common to the Geneva Conventions provides that States must “respect and ensure respect” for the Conventions.Footnote 109 The obligation to “ensure respect” has been interpreted to include an obligation to act (a positive obligation) and to cease to act (a negative obligation) in relation to the conduct of others.Footnote 110 In the Nicaragua case, the ICJ considered that the negative obligation derives not only from common Article 1, but also “from the general principles of humanitarian law to which the Conventions merely give specific expression”.Footnote 111 The International Committee of the Red Cross (ICRC) considered this negative obligation to be triggered in relation to common Article 1 if the State becomes “aware of the commission of violations of IHL by the supported forces” or if “there is an expectation, based on facts or knowledge of past patterns” that a specific operation would violate the Conventions.Footnote 112 Under such an interpretation, common Article 1 is treated as a lex specialis whereby unlike the general rule, there is no requirement of “intent”.Footnote 113
The circumstances creating an awareness or expectation will depend upon the regularity or predictability of the community defence group's activities and the nature of the relationship between the State and the group. For example, if the State regularly receives into its custody persons who have been captured and ill-treated by a community defence group, this should create an expectation of continuing abuses in similar situations.Footnote 114 A State might also acquire knowledge through other sources, such as receiving complaints about the group (e.g. complaints to the police) or through credible public channels of information such as investigative reporting by the media or international or non-government organizations.Footnote 115 One interesting dynamic in relation to the knowledge trigger is that the obligations of the State as a whole may be triggered by the knowledge of just one of its agencies.Footnote 116 For example, if the police investigate reports of abuses on the part of a community defence group that establish a predictable pattern of behaviour, all agencies of the State will be required to desist from providing support for the wrongful act.
An additional limitation in IHL is that both the negative and positive obligations (discussed below) are directed towards IHL violations. In relation to negative obligations, the State cannot encourage, aid or abet a third party to commit IHL violations. This would extend to any acts of members of community defence groups which amount to war crimes.Footnote 117 It would also apply in circumstances where a community defence group has IHL obligations as an organized armed group and as a party to the conflict.Footnote 118
Obligation to prevent abuses and violations of IHRL and IHL
IHRL and IHL both require States to take protective measures to prevent abuses or violations of their respective bodies of law by private persons. In IHRL, the obligation to prevent violations of rights specified in the International Covenant on Civil and Political Rights (ICCPR) stems from Article 2, which provides an obligation on each State Party to “respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant”.Footnote 119 This requires States to respond not only to the acts of State agents, but also to the acts of private persons.Footnote 120
The obligation to prevent human rights abuses by third parties has been interpreted as a “due diligence” obligation, requiring States “to undertake reasonable positive measures, which do not impose on them disproportionate burdens, in response to reasonably foreseeable threats to life originating from private persons and entities, whose conduct is not attributable to the State”.Footnote 121
In IHL, similarly, a due diligence obligation to prevent IHL violations is considered to exist, stemming “from the general principles of humanitarian law”Footnote 122 as well as common Article 1.Footnote 123 As in IHRL, this obligation has been interpreted as extending to preventing IHL violations by private persons whose conduct is not attributable to the State.Footnote 124 In IHL, the obligation is similarly considered to be triggered when there is a “foreseeable risk” that violations will be committed.Footnote 125
The threshold for prompting the State to respond to prevent an IHL or IHLR violation is lower than that required for it to desist from “aiding and abetting” (as set out in Article 16 at least). For example, if a police station receives sporadic reports of human rights abuses by community defence groups, this may not, without further investigation, amount to “knowledge” of abuses requiring the immediate cessation of “aid or assistance”.Footnote 126 However, it would prompt an obligation to act in response to the identified risk.Footnote 127
The response required under both IHL and IHRL is one of conduct, not result. Under IHRL, in response to a real and immediate risk, authorities are required to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.Footnote 128 The response to risk has been similarly interpreted in IHL as being dependent upon the specific circumstances, “the gravity of the breach, the means reasonably available to the State and the degree of influence it exercises over those responsible for the breach”.Footnote 129
So, for example, the activities of a community defence group operating under the guise of (if not the actual) authority of the State may carry a generalized risk of harassment or exploitation of vulnerable communities. Examples of responses to reduce that risk could include strict arms control, vetting, making funding/partnerships/joint military operations conditional on compliance with a code of conduct, appropriate supervision, training, compliance mechanisms and sanctions.Footnote 130 In circumstances where a community defence group has a practice of detaining persons to then hand them over to the State, the State would be required to address this, as this would prima facie involve an infringement of the detained person's right to liberty.Footnote 131 If the State wished for this practice to continue, it would need to provide appropriate protections, such as a meaningful regulatory framework, vetting of persons or groups authorized to conduct the “arrest”, and ensuring accountability equivalent to that demanded of members of the State's security services.Footnote 132
If the State is providing firearms to community defence groups, this too should be considered a risk and should be accompanied with appropriate vetting of individuals, training and accountability.Footnote 133 If the State authorizes a community defence group to use force, this increased risk must be matched with a commensurate response to address that risk – namely, ensuring that “strict and effective measures of monitoring and control, as well as adequate training, are in place in order to guarantee, inter alia, that the powers granted are not misused and do not lead to arbitrary deprivation of life”.Footnote 134
Where community defence groups are operating without government support, the ability of the government to prevent abuses may be limited to generalized law enforcement activities. On the other hand, where the State and community defence groups are coordinating and meeting regularly and the State is providing financial support, the State can be expected to use its weight to protect people from foreseeable, immediate and real risks posed by the community defence group to the wider community.Footnote 135 The greater the risk, and the greater the consequence of the risk, the greater the response required from the State within the means reasonably at its disposal.
Obligation to investigate and prosecute abuses and violations
The obligation to investigate and punish non-compliance can be seen in both IHRL and IHL as an extension of the obligation to prevent abuses and violations of these two bodies of law.Footnote 136 In IHRL, this obligation is also considered implicit in the obligation to provide an effective remedy to victims of human rights violations.Footnote 137 In IHL, States are obliged to investigate war crimes allegedly committed by their nationals or on their territory, and if appropriate, to prosecute the suspects.Footnote 138
In IHL and IHRL, any investigation of violations must be independent, impartial, prompt, thorough, effective, credible and transparent.Footnote 139 As the ICRC and Geneva Academy's recently published Guidelines on Investigating Violations of International Humanitarian Law acknowledge, “[t]here should be no fundamental difference between the general principles of an effective investigation in armed conflict and outside it, as their application will depend on what is feasible in each situation”.Footnote 140
Conclusion
Developing a framework for assessing the potential responsibility of States in relation to the acts of community defence groups is not simply an academic exercise. In some contexts, community defence groups have become an important part of the security framework. Having a greater understanding of the State's potential responsibility in relation to these groups can serve as an additional tool for mobilizing the State to reduce the risks associated with the work of such groups.
Quite reasonably, the instinct in assessing the obligations of a State in times of national crisis is to acknowledge the practical limitations that the State faces. Would it not be naive to expect a State to robustly recruit, train and hold to account members of community defence groups, given that such groups are often most active when the security apparatus of the State is not well functioning? This article does not ignore the challenges that a State faces, but simply demonstrates that the operation of community defence groups providing security services is not necessarily a “simple solution” for the State. In certain circumstances addressed above, the acts of a community defence group may be directly attributable to the State. More commonly, a State will incur its own due diligence obligations to prevent IHRL and IHL violations in response to reasonably foreseeable risks associated with the community defence groups’ activities, and to investigate and, if appropriate, prosecute any violations.
In addition to reducing the risks associated with the work of community defence groups, increased State engagement with such groups may prevent them from becoming a source of future instability – another potential uncontrolled armed actor in a volatile security situation.Footnote 141 Engaging in discussions about the State's responsibilities can encourage from the outset a more forward-thinking assessment regarding the role of community defence groups in addressing both the immediate and future security needs of the community and the State at large.
