‘Regularly Constituted’ Courts of Non-State Armed Groups Between Rome and Geneva

Zones of armed conflict are spaces of disorder. While this may seem a truism, the disorder of war is not limited to the violence that is one of the defining features of armed conflict. While armed hostilities are the conceptual core around which the concept of warfare has been constructed, they are echoed and amplified in the dislocation of social structures in a more pervasive fashion. Even during war, much of life goes on for many people in a manner that is not directly affected by the use of armed force, and yet all social relations are transformed by the onslaught of war. The disorder of war spills also into the legal realm, bringing insecurity to aspects of life covered by both civil and criminal law. Belligerents have an interest in managing that insecurity, mirroring the civilian population’s right to legal security, resulting in a practice of the administration of justice in zones of conflict that is distinct from justice in peacetime. The distinctiveness of the administration of justice in times of war is amplified when the belligerent in question is not a state but a non-state armed group wielding authority over a territory and a population, whether in an international or non-international armed conflict. Further to abuses committed in the name of law and order before and during World War II, states agreed in Common Article 3 of the 1949 Geneva Conventions to establish a set of minimum conditions to the exercise of public authority in the name of justice as part of even the barebones regime regulating non-international armed conflicts.