The Procedural Right to a Remedy When the State has Left the Building? A Reflection on Armed Groups, Courts and Domestic Law

Abstract

This article analyses the procedural right to a remedy under human rights law when applied to armed groups controlling territory and exercising governance. Using the Al Hassan case before the International Criminal Court as a reference point and drawing on literature on rebel governance from other disciplines, the article conducts a critical review of the application of the right to a remedy to armed groups. Finding that the right to a procedural remedy applied to armed groups can be useful and realistic, the articles evaluates how the main tools of the right to a remedy (1) domestic law and (2) domestic courts, can and should be treated, when dealing with territory controlled by armed groups. Adopting a high-altitude perspective that identifies and discusses the dynamics within the discourse that resist recognition of armed groups’ law and courts under human rights law, the article highlights key tensions within the system of international law and reflects on what the legal framework, taken as a system, can expect and require from armed groups.