When May States Lawfully Recruit Internally Displaced Persons into Civil Militias?

All states have an intrinsic right to call upon their citizens to undertake military service, but under what circumstances may states recruit citizens into irregular forces or civil militias? And what if the citizens are internally displaced persons? The answers to these questions are far from straightforward. Recognizing that recruitment into civil militias is a particularly understudied topic in international law, in 2010, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions called for further research into the conditions under which civil militias come into existence, factors that contribute to illegal conduct, and in what circumstances and how governments could or should legally support or encourage the development of such forces.

Photo: AFP/MARCO LONGARI

Photo: AFP/MARCO LONGARI

Responding to this call, my article Recruiting Internally Displaced Persons into Civil Militias: the case of northern Uganda explores the significant recruitment of IDPs into state-sanctioned civil militias in northern Uganda between 1996 and 2006. I base my analysis on international and domestic (Ugandan) legislation concerning the issue of civil militia recruitment, but also on empirical material collected in 2009 and 2010, when I was a guest researcher at Makerere University in Kampala, Uganda. In addition to interviews with former civil militia members in the northern part of the country, I made comprehensive research into the records of the Ugandan Parliament, which I found provided an important contextualization of how human rights norms are viewed in political decision making.

It was interesting to find that while refugees have been clearly protected against military recruitment of any kind ever since the very inception of the international refugee law regime, the same is not entirely true for internally displaced persons. These persons are, after all, citizens of the country in which they are displaced, and are as such subject to the general rule concerning military service. And while the UN Guiding Principles on Internal Displacement restate and compile provisions found in other human rights treaties which prohibit discrimination, cruel, inhuman or degrading treatment, as well as the use of child soldiers, I found that they offer little extended protection to IDPs in this regard. In contrast, however, I found that the application of the civilian and humanitarian character of camps may provide a considerable improvement as it clearly prohibits all recruitment of displaced persons for military recruitment, whether into regular or irregular forces.

It was also interesting to see how little guidance international law provides on the question of state recruitment into irregular forces in general. While no specific international law treaty explicitly deals with the recruitment of individuals into civil militias, this topic has on a few occasions been the focus of international and regional human rights monitoring bodies. In 1994, the UN Commission on Human Rights, for example, recognized that ‘under exceptional circumstances, when public military and police forces are unable to act, there may be a need to establish civil defence forces to protect the civilian population’.  The UN Commission set out a number of minimum legal requirements which states should establish within domestic law in order to ensure the lawfulness of these forces. Perhaps the most important of these minimum requirements is that recruitment into the forces should be voluntary and no individual shall therefore be forced to participate in such groups. Other important minimum requirements proposed by the UN Commission included that civil defense forces only shall be deployed for the purpose of self-defense; they shall be effectively controlled by public authorities; public authorities shall supervise their training, arming, discipline and operations; commanders shall have clear responsibility for their activities; civil defense forces and their commanders shall be clearly accountable for their activities;  and that offences involving human rights violations by such forces shall be subject to the jurisdiction of the civilian courts.

It was this framework I then applied to the case of northern Uganda. I found that the minimum requirements set out by the UN Commission were largely disregarded, and sought to understand how and why this was the case. I found that until 2005, civil militias were dealt with completely outside of domestic law, despite repeated calls from Ugandan MPs to establish their lawfulness. In this legal vacuum, Government authorities deliberately created a climate of confusion when it came to the management and supervision of these forces. The purpose of the creation of the militias was ostensibly to protect the IDP camps, but such forces were often specifically deployed as a military strategy against the Lord’s Resistance Army rebels. Additionally, this mode of deployment remained largely invisible in the official military budget, a factor that was seen as particularly attractive to the Ugandan government considering substantial donor concerns about Uganda’s military expenditure. Most disturbing was nevertheless the finding that the uncertain position of the civil militias created plenty of room for unmonitored conduct and substantial human rights abuse, for which Government authorities long denied any liability.

At first glance, Uganda’s 2005 UPDF Act seemed to be a welcome response to the repeated calls by Ugandan MPs for increased legislation, but through a closer analysis, I found that this Act raises a number of concerns from a human rights perspective. It disregards practically all of the UN Commission’s recommendations concerning the deployment of civil militias. Amendments to the UPDF Act are therefore necessary in order to secure that Uganda’s civil militia legislation is in line with international standards. By the same token, the lessons from Uganda may provide important insights in any future legislative work on civil militias on an international level, and particularly so in the work of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions.

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