Legality of Rebel Courts—Islamic State and Taliban Justice

Abstract

Chapter 2 assesses the legality of rebel courts pursuant to applicable rules of public international law, with the case studies of the rebel administration of justice by the Islamic State and the Taliban. The Islamic State at one point controlled a territory in Syria and Iraq as large as the United Kingdom. It had a highly developed institutional structure that was quite bureaucratic in nature, including a multi-tier court system that imposed harsh but undeniably effective justice. The Islamic State forcefully rejected notions such as the rule of law and judicial independence and impartiality. The Taliban has a hierarchical governance structure, in which courts are somewhat separate from other sections. Taliban judges are trained Islamic scholars who constantly rotate from province to province, and there are provincial appeal court and central apex courts. The very concept of a “court” used in international law norms applicable to armed conflicts implies some basic attributes that will not be met by any and all adjudicative body. That said, the concept of a “regularly constituted court” in international humanitarian law and of a “court established by law” in human rights law correspond to basic criteria that are not impossible to meet for an armed group. Likewise, the institutional requirement of independence and impartiality that define what is a court, once adapted to the reality of a non-state armed groups operating in a conflict zone, can indeed be met by some armed insurgents.