Rules and Laws in Protracted Conflict: Concurrence, Negotiation, and Friction

UU International Seminar - 28th October 2020

Inter arma enim silent leges, Cicero famously declared. In times of war, the law falls silent. Rules and laws in violent conflict may therefore seem a contradiction of terms. By their very nature, situations of violent conflict are more readily conceived as lawless and unregulated than as sites of rules and laws. In protracted conflicts, however, the persistence of animosities and crystallisation of certain practices over time may generate unique forms of social order.

On the 28th of October 2020, a group of scholars from Utrecht University’s Contesting Governance platform organized an online international seminar that grappled with the ways in which order is developed in situations of protracted conflict, whether informally as rules or formally in laws - or perhaps as something else entirely. This interdisciplinary seminar brought together a smorgasbord of scholars from legal studies, anthropology, political science and conflict studies. Collectively, they drew upon a wide range of empirical contexts - from Azawad separatism in Mali to gang violence in El Salvador - as well as theoretical viewpoints to further understandings of what rules and laws are, how they are formed, by whom, and to what end.

Despite the virtual setting, the seminar began with a genial welcome from Utrecht University’s Martijn Oosterbaan. From the outset, Oosterbaan emphasised the importance of an interdisciplinary approach to understanding rules and laws and the different actors that formulate and implement them. From the round of introductions that followed, it was immediately obvious that the diversity of disciplines and expertise present was well suited to this challenge. Those in attendance brought distinct perspectives but shared a common desire to bridge their disciplinary boundaries.

The first session saw the day begin on a legal footing. First to present was Dr. Annyssa Bellal, Senior Research Fellow and Strategic Advisor on International Humanitarian Law at the Geneva Academy of IHL and Human Rights. Her paper, titled Puzzle or chaos: the value of armed groups rules and ‘practice.s.’, considered the legitimacy, credibility and legal value of armed groups’ practices in the context of the MNLA in Mali. Following Bellal came Dr. Ioana Cismas, reader in International Law at the York Law School Centre for Applied Human Rights. Cismas presented on Religious Leaders’ Influence on Parties to Armed Conflict, with a focus on how religious leaders command influence through a relational process and not simply via claims to special legitimacy. Both Bellal and Cismas’ presentations were clearly rooted in legal studies, however the wider relevance of these topics was immediately evident from the thoughtful discussions that followed. Questions raised on the agency of armed groups vis-a-vis international law and the politics of humanitarian organisations’ interactions with religious leaders testified to the accessibility and importance of these topics to scholars from other disciplines.

Following a brief break, the second session of the day continued the legal thread with a presentation from Dr. Katharine Fortin, Assistant Professor at Utrecht University Law School. Unlike her predecessors, however, Fortin took a more theoretical tack in her presentation on Bottom-up approaches to the ‘rule of law’ in territory under control of armed groups. By inverting the predominantly “top-down” perspective of existing scholarship to consider this question from the perspective of armed groups, she was credited by her discussant with producing a paper that was “fascinating, necessary, and very persuasive.” The theoretical nature of these discussions provided a fitting bridge to the following presentation from Dr. Bart Klem, Senior Lecturer at Gothenburg University’s School of Global Studies. Klem considered the most foundational element of statebuilding - the demos itself - in his thought-provoking paper on the boundary problem of democracy in Sri Lanka. Here the wide range of interdisciplinary and regional expertise of those in attendance was readily apparent, as Klem’s presentation invited comparisons with a host of other conflicts across the world.

In the third session of the day, discussions turned towards an anthropological perspective on rules and laws. Dr. Laurens Bakker, Associate Professor at the University of Amsterdam’s Department of Anthropology, demonstrated the power of violence which is threatened but not realised and norms which may be more moral than legal in an empirically-rich presentation on Violence and Normativity Beyond the Law in Indonesia. The ease with which his discussant was able to translate its findings to different contexts testified to the global relevance of the questions underpinning Bakker’s research. Notions of informal rules ‘beyond the law’ were continued in the next presentation of the day from Utrecht University’s Nikkie Wiegink, Assistant Professor in the Department of Anthropology. Wiegink’s presentation on Ambiguity, conflict, and corporate power in the surroundings of coal mines in Mozambique deftly outlined the interactions and tensions between different bodies of rules and laws governing resettlement processes. In particular, Wiegink’s photos and anecdotes from the field provided a welcome reminder of the world beyond Zoom.

The fourth session saw discussions return to more theoretical territory with a presentation from Prof. Dr. Julia Eckert, Director at the University of Bern’s Institute for Social Anthropology. As well as providing a concise summary of the day’s topic in her paper’s title (“It all depends”), Eckert’s presentation on the situational singularisation of norms and rules articulated a compelling argument for considering the specific constellation(s) of legal pluralism and temporal uncertainty of its authority in situations of protracted conflict. After this theoretical foray, the session steered back towards a more empirical conversation via two presentations on Latin American gangs. The first, from Dr. Dennis Rodgers of the Graduate Institute of Geneva, focused on graduated gang governance in urban Nicaragua, or how different generations of gang members coexist. The second, from Utrecht University’s Dr. Chris van der Borgh, considered War and peace as formal and informal strategic practice, or the different strategies of accommodation and repression undertaken by the authorities in El Salvador for dealing with gangs. In both cases, it was clear that even in protracted conflicts where any semblance of social order appears absent, novel (and even powerful) forms of governance can and do emerge.

Rounding off the day and continuing the Latin American theme in the fourth session came a quartet of presenters. Prof. Dr. Kees Koonings and Prof. Dr. Dirk Kruijt, from Utrecht University’s Department of Anthropology, presented first on Criminal Governance and the Hybridization of Law in Latin America. The gist of their argument - that informal, low intensity conflicts breed hybrid forms of governance, including hybrid rules and laws - resonated strongly with the preceding presentations and the theme of the seminar more generally. Following Koonings and Kruijt came Dr. Gabriel Alberto Ruíz Romero and Pedro Alejandro Jurado Castaño from the University of Medellín’s Conflict and Peace Research Group. Their presentation on Multiple Regulatory Social Orders in Territories Affected by Violent Conflicts in Colombia provided a fitting end to the day. By weaving together questions of state absence, plurality of social and legal orders, and the instrumental use of criminality to reassert legitimacy, Romero and Castaño reiterated and expanded upon many of the same notions explored in earlier presentations.

The seminar ended as it began, with Martijn Oosterbaan thanking everyone for their insights and engagement. After eleven presentations, Oosterbaan was left with a challenging task in summarising not only their content but the extensive discussions they prompted. Nevertheless, he astutely observed a natural flow from the day’s earlier discussions on origins of the law to later discussions on manifestations of the law. While the questions posed throughout the seminar defied easy summary, their breadth and depth were testament to the expansive ground shared by the different fields of inquiry. In any case, it was clear that in times of war and conflict, rules and laws are never silent.

written by Neil Wilson.