Civilian Militia And The Demise Of The Sovereign State. Is International Law Viable

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By Joburg Post

The “nation State” is a legally inappropriate juridical
structure to guarantee the sustainability of the global legal order, let alone legitimise
it.

International law fails to account for the empirical reality
of the emergence of private civilian militias that have risen from within the
civic society of the nation State. Militia such as Boko Haram govern and
control parts of the Sudan and Nigeria; likewise Al-Shabaab in Ethiopia and
Eritrea; the self-proclaimed Caliphate of the Islamic State which traverses
Iraqi and Syrian Borders; and the ‘State within a State’ - Hizbollah in
Lebanon.

These groups have mobilised armies and usurped state
functions within the State and in spite of it. They exercise these functions
within their territories to the exclusion of concurrent power held by the
normative (formally legal) State. These militias are in fact the real and
legitimate powers that exercise the power of government and constitute a de
facto State. The international legal order perpetuates the proliferation of
these de facto States in denying their legal capacity and insisting upon the
post-colonial State as the only legal person in International Law and international
relations.

Legitimacy and statehood

The fiction of the nation-State together with the imprecise
features of sovereignty, have impacted on the effectiveness of the substantive law,
so as to deprive Statehood and sovereignty of real tangibility and credibility.
In turn, international law is unenforceable, ineffective, illegitimate and
irrelevant. The friction between normative international law and reality is
played out in the menagerie of the rules of self-defence between States and
civilian militia. This very contentious issue illustrates the fundamental
weakness of the international legal order: the fictions of legal personality
and sovereignty as constituted in the State.

Normative narratives obscure the very complex ethical issues
that ensue commensurately with civilian militias. To the extent that
international law does not exercise recognition of these powers it lacks
effective legal authority or jurisdiction in and against civilian militia
territories. The power of the normative State and, therefore, the reality of
the sovereign State has been de-legitimised by the usurpation of real political
and military power by civilian militias who exercise effective and political
power within the territories under their control. The fallibility and failure
of the normative State in international law is seen in the armed conflict
between States and civilian militias where international law simply ceases to
be effective law. The reality of the force of civilian militia is ignored in favour
of the fictitious sovereign State.

In post-colonial States, where the population is an amalgam
of numerous tribes, cultures and languages, the matter of simply defining a
State in legal terms has most certainly prejudiced the legitimacy of the
domestic and international law and social adherence thereto. Illegitimate
Statehood conferred on post-colonial States is a legal fiction, not in the
sense of positive law only, but in the technical sense of the term, because
these States lack legitimacy and in most instances suffer a democracy deficit.

The illegitimacy of the normative fiction of the sovereign
State is obtrusively evident in the emergence of civilian militias. Civilian
militias challenge the theory of the superimposed post-colonial State as a legitimate
legal structure. The superimposition of nation States during de-colonisation is
marred by a legitimacy deficit in the sense that obedience to the law and
cognisance of it is an organic effect of grassroots allegiance. This is why we
are witnessing and can expect to see an increase of the alternative political person,
the civilian militia as a de facto State. Inimically, the normative State is
not necessarily organic but rather superficially imposed. Within postcolonial States
it cannot be presumed that obedience to the law is a result of a legitimate
civilian recognition of the State within that legal system.

That civilians foment and legitimise governance and
statehood and other forms of political organisation such as civilian militia is
realised in the quagmire of the Palestinian quasi-State. The Palestinian
Authority grew out of the Palestine Liberation Organisation – a civilian
militia that responded to the legitimacy deficit within the State structure of
international Law. The birth of the PLO as a political resistance movement
which became a civilian militia has given impetus to subsequent Islamic
militant organisations whose followers identify with the religion, sect and
sometimes tribe. The Palestinian nationalist discourse has become theocratic
and against the secular State in the form of HAMAS. The civilian militia yield
more allegiance to the said political organ of the relevant militant organisation,
and this merits them with greater legitimacy in the absence of a normative
State.

The legitimacy deficit fed into how ISIS/IS was able to
shape its own territorial boundaries within Iraq and Syria. In those
territories, the effective control was vested in IS and not Iraq or Syria.
However, international law took no cognisance of this very protuberant and
material fact, instead conceding to wallow in indeterminacy of theory and irrelevance
of doctrine over normative fictions and imputation. Legal personality The
jurisdictional basis for most legal systems is Person and Territory.

The international legal system has jurisdiction only by
consent over certain categories of legal persons. Jurisdiction, therefore, is
not compulsory and applies only to a certain class of persons in certain
instances, the first being the State. The State is seen as possessing the most
complete legal personality i.e. it is the bearer of all rights and obligations
in international law and it is assumed, therefore, that it is the only person
that is legally (normatively) capable of engaging in armed attack.

Inversely, the doctrinal or normative assumptions are that
non-State actors are not factually capable of engaging in conduct that would
warrant an act of self-defence by a State. The legal formalist interpretation
is conceptually incapable of allowing for non-State actors as independent
persons in selfdefence. Law propitiates derivative capacity in order to account
for presence in the international relations arena. Their conduct is deemed to be
legal fiction animated through imputation – specifically attribution.

Attribution “Attribution”, as an aspect of vicarious
liability in private domestic law, is hideously imposed on culpability of State
in a criminal context. State and sovereignty as aspects of legal personality
have emerged in an incongruent manner. “Attribution” is applied where the
conduct of one legal person is imputed to another with legal capacity. The
principle made its way into international legal discourse under Article 11 of
the Draft Articles on States Responsibility (hereinafter “the Draft Articles”)
prepared by the International Law Commission. However, the Draft Articles were
contemplated in the context of the Private Law of Obligations, not
self-defence, which derives in the field of Criminal Law.

Special Rapporteur Roberto Ago commented that attribution is
inappropriate for self-defence where the “insurrectional movement… has reached
a stage of development making it a separate subject of international law”
(Ago:1972). Ago clearly makes the case for the separate legal personality of
civilian militias, dispensing with an over-stretched explication of
“attribution”. Yet in the 1986 International Court of Justice’s (hereinafter
“ICJ”) judgement of Nicaragua v the United States (1986), the Court proscribed
any legal cognition or capacity in relation to civilian militia. It reasoned that
the conduct of civilian militias must be imputed to a State in order to invoke
self-defence under Article 51 of the UN Charter. Not only is this fictitious in
its very formulation, but the judgment in itself is misread and abused by
normative scholars.

Civilian militias are factually capable of engaging in
physical conduct with real consequences. Notwithstanding, the effect of their
conduct is simply ignored by international law. Ignorance is not bliss in this
instance, it is fatal. Sovereignty The second constitutive principle of jurisdiction
is sovereignty. Sovereignty is an unholy mixture of law and politics and smacks
of power politics under the guise of objective law. It is equally as abstract,
fictitious and troublesome.

Conventionally, sovereignty was recognised and exercised as
a result of factual and effective control over a geographical territory.
Consequently, juridical rights and obligations followed from exercise of such
factual and effective control. The UN Charter has since dissected sovereignty
into juridical as negative sovereignty, which is nothing more than a normative fiction,
and factual sovereignty as positive. Negative sovereignty is openly political.
Contemporary notions of sovereignty have fused and confused the two forms and
now a State has normative sovereignty even if it does not have effective
sovereignty.

The dualism in sovereignty allows international law to
believe in its own objectivity as a science without confronting the reality of
the politics of sovereignty. Sovereignty is at most a political concept that
cannot claim to be an independent legal principle. Most certainly, when squared
against the reality of civilian militias, sovereignty is yet another empty
fiction of normative legal theory.

Effective control Effective control is a precondition for
effective and positive sovereignty. However, negative sovereignty seems to have
subjugated the effectiveness of positive sovereignty to the realm of its own
fictitious domain. When States fail to effectively exercise factual power and
control over certain parts of their territory they cease to be a whole sovereign
State. They are at most a failed, ineffective or fictitious State.

Domestic analogy The concepts of legal personality and
sovereignty are apprehended more easily, if we compare the International Legal
Order to a Domestic Legal Order. Law is derivative of organic society.
International law is the macro end-product of an embryonic rule system in
micro-social structures. It is an extension of domestic law.

International law must have some organic relationship to
domestic law and thus it is reasonable and appropriate to compare international
law with its originator, domestic law. The principles of international law are
drawn from domestic law. For example, legal personality, self-defence and
sovereignty have corresponding values in domestic law. Sovereignty can be seen
as being equivalent to individual liberty and objectivity within the Rule of
Law.

In a domestic legal order, the legal persons are both
empirically individual and/or normatively vicarious. A vicarious person is a
fiction created in domestic legal systems to give singular legal capacity to
groups of persons such as charities and companies. In this way, vicarious
persons are deemed to have acted in a singular mental capacity and conduct is
imputed to them. The real person in domestic law is imbued with normative legal
personality as a result of their factual existence. Factual circumstance is the
cause for legal circumstance. Public International law enjoys no such empirical
reality. Herein is the beginning of the conundrum. A purely fictitious notion,
the State, gives rise to what is erroneously referred to as legal fact, not
empirical fact. Fiction dominates international law, not fact.

Factual reality and law The vast discourse on the debate shows
that international law is paralysed on the matter of extraterritorial conduct
by civilian militia groups. Journal articles and books present either a
normative or empirical proposition, swinging the pendulum between the
apologetic restrictive interpretation of self-defence, which would prohibit
armed attacks against the said militants, to the empirical which does not
prohibit self-defence against them. The debate appears to be circular, relying
on interpretation of treaty law or customary international law and shows no
sign of escaping this circular narcissism.

Whilst international law debates indulge in the luxury of
uncertainty, the case for the irrelevance of international law looms. Take for
example the many UN Security Council Resolutions on armed militant groups. The
Resolutions have been used both for and against the legal arguments in respect
of military action against civilian militia. To say that the law is clear is an
apologist under-statement.

Imperatively, the debate shows approaches that are more
symptomatic than diagnostic. The theoretical constructs belying international law
appear to be the cause of the problem. These can be identified as the
fundamental deficiencies in the foundational legal concepts that compose the
law of self-defence and sovereignty. If the premise is wrong, then the
conclusion is inevitably wrong. The fundamental unit of international law, the
State, is in an identity and definitional crisis.

There is a conflict in legal theory that can be identified
as normative versus the empirical. Are Statehood and sovereignty normative or
empirical or both? Even the over-idealised romanticism of collective
self-defense under Chapter VII of the UN Charter provides no respite.
Collective self-defence has hardly ever been invoked because of the veto powers
of Security Council Members. Again, the contradiction prevails. The UN has no
legislative capacity outside of Treaty, yet Chapter VII vests a quasi-judicial discretion
within the undemocratic and politicised Security Council. Undemocratically and
illegitimately, seven member States decide when to enforce the law and when not
to.

The process lacks clear objectivity of the Rule of Law and
antagonistically feeds arbitrariness into the very same. Not only is
international law unable to address the problem, its incapacity to thwart the
danger is commission by omission of the furtherance of threats to global peace.
Conclusion The crisis within the fiction of the nation State is the most
fundamental problem in international law. The basic constituent unit of the
legal order, the State, is fragmented and fictitious.

While post-Charter international law was conceived in a
spirit of promoting peace through consolidation of sovereign States, its purpose
contradicts the reality. International law is not addressing the threats to
peace and the global order that are presented by civilian militia and failed
States. The paralysis may be a commission by omission; it is in fact allowing
the proliferation of breaches to peace.

The main reason for the failure is that legal or normative
aspects of Statehood and sovereignty have dominated the empirical; there is an
absence of nexus between real and ideal in State and sovereignty. The
constituting concepts on which international law is premised are faulty. The
legal approach cannot be coherently held.

The sustainability of international law urgently and
imperatively demands the apprehension of a jurisprudence which colludes between
normative and empirical. The monism of the State needs to dissect into a
dualism of legal personality so as to legally cognise civilian militia as real
participants in the global order. Consequently, the different forms of social
governance possessing factual power should be recognised and brought within the
Rule of International Law along with the State. The inter-play between International
Law and its subjects could then expect to coalesce more viably in manageable
international relations. If effectiveness were to be embedded into the criteria
for legal personality and sovereignty, legal arguments would broaden beyond the
limitation of the monistic State, dispense with the fiction of attribution and
draw non-State actors into the playing field of international law. Claims to inviolability
of Sovereignty would be validated.

Final Thought The indictment in this article leads to a more
serious and urgent question: Is international law and its States system
implicit in the suppression of a Palestinian identity and cause? Palestine and
the Palestinian Authority is not a State in normative theory even though it is,
empirically and factually. Its limited “recognition” in international law has
provided very little respite to the ordinary Palestinian.

Has the suppression of identities of ethnic groups within
the super-State system in fact been the cause of the rise of civilian militias?
The States system in international law has turned on its head: it can no longer
claim to be a beacon of peace and order. International law has become a system of
global oppression. ■

By

Marcia Williams

This article has previously appeared on The Thinker Journal,
its has been republished with permission

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