Judging Foreign Fighters Before Non-State Courts

Nine British former ISIS fighters have been held without trial by Syrian Kurdish forces for several years. The UK, reluctant to repatriate its nationals, would prefer them to be tried “where the crimes were committed”, concretely meaning prosecutions before the courts of the unrecognised administration of the Kurdish enclave in North-East Syria.  More recently, four British men fighting in Ukraine were captured and prosecuted by the courts of the People’s Republic of Donetsk, an unrecognised pro-Russian entity in eastern Ukraine. The UK government slammed these trials as “a sham”, and has demanded the release of its nationals. There are many important differences between the wars in Syria and Ukraine, but both offer examples of the administration of justice at the hand of unrecognised armed groups. The idea of rebel courts challenges fundamental assumptions about the rule of law, but arguably there are ways to reconcile the legal requirements of a fair trial with non-state justice. Indeed, international law provide the conceptual toolbox that can allow distinctions to be made between rebel justice in Kurdish Syria and that before the courts of Donetsk in Ukraine.

Keywords: rebel courts, international law, rule of law, sovereignty, war crimes, human rights, due process

About Professor René Provost

René Provost holds a Bachelor of Laws from the Université de Montréal, a Master of Laws from the University of California at Berkeley, and a D.Phil. from the University of Oxford.  He served as law clerk to the Honourable Justice Claire L’Heureux-Dubé at the Supreme Court of Canada in 1989-1990, and taught international law at Lehigh University in Pennsylvania in 1991.  He joined the Faculty of Law of McGill University in 1994, first as a Boulton Fellow (1994-1995), then as Assistant Professor (1995-2001) Associate Professor (2001-2015), and Full Professor (from 2015).  He was the Associate Dean (Academic) of the Faculty of Law from 2001 to 2003.  From 2005 to 2010 he was the founding Director of the McGill Centre for Human Rights and Legal Pluralism. Professor Provost teaches Public International Law, International Human Rights Law, International Humanitarian Law, International Environmental Law, Legal Anthropology, and various courses in legal theory.  He is the author of International Human Rights and Humanitarian Law (Cambridge University Press, 2002), and Rebel Courts – The Administration of Justice by Armed insurgents (Oxford University Press 2021, winner of the 2022 ICON-S Prize for Best Book in Public Law), the editor of State Responsibility in International Law (Ashgate-Dartmouth, 2002), Mapping the Legal Boundaries of Belonging: Religion and Multiculturalism from Israel to Canada (Oxford University Press, 2015), Culture in the Domains of Law (Cambridge University Press, 2017), and co-editor of International Law Chiefly as Applied and Interpreted in Canada, 7t Ed. (Emond Montgomery, 2014),  Confronting Genocide (Springer Verlag, 2011), Dialogues on Human Rights and Legal Pluralism (Springer Verlag, 2013).  He was the president of the Société québécoise de droit international from 2002 to 2006. In 2015, he was named a Fellow by the Pierre Elliott Trudeau Foundation for his contribution to the advancement of knowledge in the social sciences and humanities. The Québec Bar Association appointed him senior counsel (Ad.E.) in 2017 in recognition of his exceptional contribution to the legal profession. In 2019, Professor Provost was elected a Fellow of the Royal Society of Canada.

This event is co-sponsored by the Centre for Criminology & Sociolegal Studies and the Transnational Justice Project.

A light lunch will be served at 12:00pm in the Centre Lounge, 2nd floor of the Canadiana Gallery. 

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