(This event was organised by MEI’s Transsystemic Law Research Cluster, as part of its quarterly public talks series.)
Non-state armed groups (NSAGs) – whether described as rebels, insurgents, guerrillas, militants or terrorists – are often perceived as lawless entities that defy national and international law and possess no legal personality or authority to make ‘law’. They are thought to rule out of the barrel of a gun and their only law is that of the jungle. Like states and the international community, legal scholars have been traditionally reluctant to recognise non-state law as ‘law’ worthy of legal study. This paper challenged these assumptions of non-state lawlessness. It considered when certain exercises of authority by NSAGs might be recognised as ‘law’; discussed reasons why law is an appealing technique of authority; and raised questions about how to evaluate the legitimacy of ‘illegal’ laws.
Armed groups are often not lawless at all, but bursting with law in archetypally human ways – military, criminal, civil, administrative, public and private. They often also possess legal institutions and processes of various kinds, from informal, traditional or customary dispute resolution mechanisms to formal ‘courts’ and even law schools. Their substantive law is surprisingly not as transformative or revolutionary as might be expected from those who seek to overturn the lawful authority of the state, but is full of continuity with prior state law, hybridity, pluralism and external (vertical and horizontal) influences. The paper also has implications for how other actors – states, international organisations, foreign domestic legal systems, donors and NGOs – might approach and engage with non-state law.
About the Speaker(s)
Ben Saul is Challis Chair of International Law at the University of Sydney, Australia, a barrister, and an Associate Fellow of Chatham House. Significant books include Defining Terrorism in International Law (2006), Research Handbook on International Law and Terrorism (2014), the Oxford Commentary on the International Covenant on Economic, Social and Cultural Rights (2014) (awarded a Certificate of Merit by the American Society of International Law), and Indigenous Peoples and Human Rights (2016). Ben practises in international tribunals and was lead counsel in five successful national security cases against Australia before the UN Human Rights Committee (FKAG (2013), MMM (2013), Leghaei (2015), Hicks (2016) and FJ (2016)). Ben has advised United Nations and international bodies, governments, and NGOs, and delivered technical assistance in developing countries. Ben has served on various international and national bodies, and taught law and undertaken field missions in numerous countries. He often appears in the media. He has a doctorate from Oxford and honours degrees in Arts and Law from Sydney.