On 19 September 2016 Mr Tilman Rodenhäuser defended his PhD thesis in International Law, entitled “Armed Groups under International Humanitarian Law, Human Rights Law and International Criminal Law: What Degree of Organisation is Required?”, at the Graduate Institute. Professor Nicolas Michel presided the committee, which included Professor Andrew Clapham, Thesis Director, and Professor Sandesh Sivakumaran, from the University of Nottingham, UK. Mr Rodenhäuser’s dissertation examines at what point armed groups become relevant actors under those three distinct fields of international law. He presents us his findings on this under-researched but most important issue. As Mr Rodenhäuser emphasizes, the questions he examines in his thesis are among the first ones that any lawyer aiming to address acts of violence committed by armed groups must answer.

What made you choose your research topic?

Examining the requisite degree of organisation of armed groups to have obligations under different fields of international law sounds like a technical legal question. However, two very concrete situations inspired my research.

The first was post-election violence in Kenya in 2007–2008 and subsequent prosecutions at the International Criminal Court (ICC). After presidential elections in 2007, violence rocked parts of Kenya, resulting in many dead, wounded and displaced persons. When in 2010 the case reached the ICC, the legal issue splitting judges was whether the organisers of these crimes – namely criminal groups, political parties or ethnic groups – could be considered as an “organisation” as required under article 7(2)(a) of the ICC Statute. The existence of an “organisation” behind certain widespread or systematic crimes is a necessary requirement to qualify and prosecute acts as crimes against humanity. However, the question of which characteristics such an organisation needs to have continues to be debated among legal experts.

The second situation was the escalation of anti-regime protest in Syria into a non-international armed conflict in 2011–2012. In response to the Syrian regime’s violent suppression of protest, opposition groups armed themselves and increasingly engaged in confrontations with regime forces. When violence escalated in early 2012, a UN commission of inquiry tried to establish whether internal violence amounted to a non-international armed conflict. If that was the case, international humanitarian law would apply, and certain violations of that law could be prosecuted as war crimes. The key issue that bared the commission from qualifying the situation as an armed conflict was that it could not determine whether the armed groups in question were sufficiently organised. At the same time, the commission found that armed groups have certain human rights obligations.

These situations made me wonder: When is an armed group sufficiently organised to be party to an armed conflict? When can it have human rights obligations? And what is an “organisation” behind crimes against humanity? Et voilà, there was my research question!

And what did you find?

I think in all modesty that I made two types of important findings.

The first one is rather practical. Under each field of law, I identify at what point armed groups are sufficiently organised to bear certain legal obligations, or to be relevant in the commission of an international crime. Given the great practical importance of these questions, I hope my findings will help to clarify when armed groups have certain international obligations. In turn, legal clarity enables humanitarian actors to engage with groups in order to enhance their compliance with the law. I also identify how different kinds of armed groups can be involved in the commission of crimes against humanity or genocide. These results – if taken up in practice – can be key to prosecute those responsible for these crimes.

The second finding is of a rather academic nature. I argue that the question of when a group becomes legally relevant under international law cannot be determined in the abstract in a one-size-fits-all approach, but depends on the nature and exigencies of each field of law. While this sounds quite intuitive, it is a result that I have not seen clearly articulated elsewhere.

Can you give us topical examples showing the applicability of your research?

There are plenty, namely most contemporary situation of violence and conflict! Let’s take the so-called Islamic State (IS) as an example. One hot question is whether IS in Syria/Iraq and IS groups in Libya or other states form one “organised armed group” under international humanitarian law. If that was the case, some would argue that a state involved in an armed conflict with IS in Syria/Iraq would also be involved in an armed conflict with IS in other states. This question can have important consequences, for example with regard to the use of force. Staying with IS, a second issue is whether IS is bound by international human rights law. In some parts of Syria and Libya, IS exercises quasi-governmental authority. Thus, we need to ask whether this means that IS bears human rights law obligations, and if yes, which ones. And third, let’s hope that one day an international court or tribunal will have jurisdiction over crimes in Syria. In order to prosecute alleged war crimes, this tribunal will need to determine at what point violence amounted to an armed conflict. It will also need to address the question of which kind of groups could commit or instigate crimes against humanity. All these questions are examined – at a certain level of generality and abstractness – in my thesis.

Is there a continuity between your doctoral life and your current professional activities?

Since May 2016, I am legal adviser at the International Committee of the Red Cross, so I continue working on issues related to armed conflicts and hence to armed groups. While I no longer have the time and liberty to examine in depth all the important legal questions that cross my way, I frequently discuss questions treated in my thesis with interested colleagues. This gives me the feeling that some of my findings are practically relevant, address issues that occur in the real world, but do not have unambiguous legal answers.

In addition to my “day job”, I continue to do some research on my PhD topic. I have been invited to publish some finding in a journal and I aim to publish my results in a book. According to friends and colleagues, the PhD will continue to entertain me for some time!

How will you remember your doctoral experience?

As a very good time! I have greatly enjoyed the freedom to determine exactly on which issues I want to work, at what time, and from where. For example, I had the great pleasure to finalise my PhD while living in Senegal.
As PhD students, we often complain about how difficult this whole process is. However, in my view it is rather a luxury to be able to research and write exactly on the issues that you find important. This freedom does not exist outside academia. Moreover, although I always thought that writing a PhD can be a heavy burden and responsibility, for me it was never as exhausting as working a full office day…

Full citation of the thesis: Rodenhäuser, Tilman. “Armed Groups under International Humanitarian Law, Human Rights Law and International Criminal Law: What Degree of Organisation is Required?”. PhD thesis, Graduate Institute of International and Development Studies, 2016.