Legal identity under insurgencies and unrecognised states: interdisciplinary approaches pushing us back, better-equipped, to international law?

ABSTRACT

Through the idea of asking what I describe as ‘jester’s questions’ that are comfortable with paradox, this Afterword to the Special Issue reflects upon the value of critical, multi-disciplinary approaches for international law, the parallel binaries and pluralities in international law, and the relevance and capabilities of international humanitarian law regarding legal identity under insurgencies and unrecognised states. I suggest that the critique offered by the multi-/inter-disciplinary approaches in this Special Issue highlights international law’s limits given the realities of the issuance of identity documentation by non-state entities. At the same time, precisely by illuminating those practical realities, this collection alerts us to the accompanying nuances existing in the law. Through this entry point, we are encouraged back, better-equipped, to international law and to better understand where and how it can already cope with greater complexity and compromise than might often be assumed. It allows us to place real demands on the law to prove itself as relevant and capable of protecting people, somehow holding together that paradox of universal principle and grounded application.

KEYWORDS:

• Citizenship
• legal identity
• armed conflict
• insurgency
• de facto states
• international law
• international humanitarian law
• interdisciplinary methods

The collected articles in this Special Issue reaffirm the vital relevance of continued attention to legal identity and the need for that attention to be multi- and inter-disciplinary and contextually grounded. This collection also reminds us that the examined contexts of de facto insurgent authority and unrecognized states have involved or continue to involve violence and ongoing belligerent relations of some kind between the State and the actors opposing that State or aspiring to statehood themselves.

By way of an afterword to this Special Issue, this contribution draws out certain reflections related to these two elements. Firstly, considering what the insistence on a multi-/inter-disciplinary approach means for or offers our own ‘home’ discipline – in my case, international law. Secondly, within international law, although legal identity and statelessness issues are first and foremost thought of as a human rights issue (including the question of self-determination in several of the contexts discussed in the articles), the underlying background of violence and armed conflict in the situations under examination reaffirms also the relevance of international humanitarian law (IHL) to legal identity.

Combining thinking about these two elements with the idea of asking what I describe as ‘jester’s questions’ that are comfortable with paradox, I suggest in this afterword that the critique of the law offered by the multi-/inter-disciplinary approaches in this Special Issue highlights the law’s limits – that it is too narrow or too binary in the face of the realities of the issuance of identity documentation by non-state entities. At the same time, precisely by carefully showing us those practical realities, this collection alerts us to the accompanying nuances existing in the law and its application. This collection therefore offers an entry point to better understanding where and how international law can already cope with greater complexity and compromise than might often be assumed.

I am suggesting, then, that rather than immediately rejecting international law as unhelpfully binary on these issues, the multi-/inter-disciplinary approach encourages us not only to continually return to and reconsider our own discipline but also enables us to do so far better-equipped. It allows us to place real demands on the law to prove itself as both relevant and capable of protecting people. IHL seems particularly apt for considering such existing nuances since it does not immediately reject non-state armed actors as illegitimate but rather retains an ambiguous position regarding their resort to force, demanding of them also care for the populations under their control when such groups are parties to armed conflict.

In this afterword, I will first explain what I mean by a jester’s questions, before reflecting upon the value of critical, multi-disciplinary approaches for international law, the parallel binaries and pluralities in international law, and finally considering the relevance and capabilities of IHL regarding legal identity.

A Jester’s questions for a looking-glass world

Marika Sosnowski and Bart Klem describe the situations of insurgency and aspirant states studied in this Special Issue as a ‘looking-glass world’ because, as they point out in their introductory article (this issue), studying legal identity under insurgencies and unrecognised states challenges orthodox ideas of the State and therefore also of citizenship, which in the contemporary international legal order, only the State can grant.

In keeping with the editors’ depiction of a ‘looking-glass world’ (Sosnowski and Klem, this issue), I find that thinking like a court jester can help us see or understand certain absurdities, a.k.a. certain realities, as well as the possibility of alternatives. Playwright Jo Randerson has explained how the jester or the clown is freed to be vulnerable, asking the stupid questions that everyone is thinking but not daring to say out loud. Randerson gives the following example (quoted in McAllister 2013):

[W]here most of us may be looking for ways to do less work and make more money, a clown might ask: ‘How do I do more work and make less money?’ If you start thinking about reasons why anybody would want to do that, then the clown has done his or her job.

A jester’s questions can be very productive. They allow and make space for some disorder, valuing the saying of what needs to be said, to test whether an idea is actually robust in essence, challenging the political status quo. Concretely, one method of challenge involves turning dominant ideas on their head.

Applying this to the legal identity topics studied in this Special Issue, a jester might enquire, say, about the ways a non-state actor is state-like and a state is non-state-like. Rather than asking how legal identity could be assured for every person, a jester might ask how every person’s legal identity might be most effectively denied, or how documents being issued could best be designed to pose maximum risk of violence to their bearers or the least validity and acceptance. If such questions operate to test whether the contemporary system or any other idea is robust, then the question has done its job. They can highlight the enduring intertwining of the state and the non-state, the valid and the illegitimate, and expose methods that harm while nevertheless being argued for with the language of law, logic, protection or universalism.

Indeed, as well as this collection challenging orthodox ideas of the State and therefore also of citizenship as mentioned above, the contributors’ careful descriptions of the realities regarding the issuance of legal identity documentation by actors other than recognized States also enrich orthodox understandings of statelessness. The situations of rebel governance and aspirant states being considered here involve not only the risks of people becoming de jure stateless.¹ Rather, some of the contexts being studied demonstrate also examples that might be considered de facto statelessness. De facto statelessness has been defined in various ways, one of which is ‘[having] nationality according to the law, but either this nationality is not effective or they cannot prove their nationality’ (Sardelić 2021, 107, citing Weissbrodt). While de facto statelessness is generally understood as requiring the individual to be outside the territory of their country of nationality and, for valid reasons, unable or unwilling to have recourse to the protection of that country (Peter McMullin Centre on Statelessness 2020, 3), the fact of control by a non-State actor over parts of the State’s territory can operate in similar ways (see, e.g., McGee, Grant-Brook or Adamczyk and Doumit, all this issue).

Finally, if we consider how people living under insurgencies and unrecognised states ‘have become caught in … networks of competing legal regimes’ (Sosnowksi and Hamadeh 2021, 7), then in one sense, these pluralistic legal situations also challenge our understanding of what should be considered law in the first place. I return to this below regarding the interdisciplinary approaches offered by this collection.

Interdisciplinary approaches pushing us back, better-equipped, to international law

To talk of jesters is not to make light of the serious vulnerabilities people living under the control of an armed group or would-be state authorities might be experiencing. Indeed, the jester is in another sense deadly serious; the wisest person in the room. As such, I am offering a voice of agreement with the approach taken within this project, namely of taking seriously the reality that non-state, including insurgent and even terrorist actors, do issue legal identity documentation which is recognised, even required, for certain purposes in certain areas of the world; that their presence and actions do create challenges for access to the ‘normal’ state system of legal registration; and that documentation issued through the ‘normal’ state system might also create vulnerabilities for those people living in non-government controlled areas (see, e.g., Ganohariti, McGee, Grant-Brook, Adamczyk and Doumit, Immanuel, all this issue).

In a previous piece discussing the role of law in questions of statelessness and citizenship, I argued that future research and efforts needed to be interdisciplinary and intersectional, seeking comprehension of subtle and messy real contexts historically, socially, emotionally and politically, and paying attention to the local, transnational and international (Lloydd 2021, 365; see similarly; Sardelić 2018). The ‘looking-glass world’ described by Sosnowski and Klem is carefully examined and thoughtfully analysed by the contributors to this collection in precisely that way. The contributions explore issues related to legal identity for populations in Myanmar, Syria, Iraq, Ukraine, Western Sahara, India and the Caucasus by thinking richly through law, political science, international relations, sociology and anthropology, using methods including ethnography (Hedström, this issue) and quantitative approaches (Dhiman and Harbers, this issue).

Some authors look in detail also at specific aspects of identity and related forms of documentation less often considered than birth certificates and citizenship documents/passports, namely, marriage certificates (Hedström, this issue) and death certificates (Hampton and Petkova Khan, this issue).

Moreover, the contributions consider the past, the current realities of violence and conflict and the ‘not yet’ of statehood, while also having an eye to the future ‘after’ or aftermath. For example, Andrea Immanuel (this issue) makes a sophisticated argument that better respect for and recognition of the nationality of the Saharawis in Western Sahara, despite the state not yet being recognised, is crucial in upholding their right to nationality in future.

I am suggesting that it is the interdisciplinary nature of the collection that helps us to better appreciate a jester’s questions and, in turn, provides us additional insight into the operation of the law, and people’s lived realities. Work in anthropology and international law, or political science and international law, for example, can ‘ask questions that go beyond the internal logic of law’ (Steininger and Paige 2024, 129), a little like a jester’s perspective. These perspectives can ‘attempt to understand the social and cultural contexts of international law’ and ‘investigate the role of political organisation, government, and structures upon which international law relies’ (Steininger and Paige 2024, 134). While not necessarily turning everything on its head, broader thinking around international law, rather than only in international law, helps us get to the heart of the matter, precisely by examining a range of actors and their interactions with international law.

As such, as noted above, this collection’s setting out of lived realities with careful contextual detail focusing on non-State actors and non-State law – or should that be ‘law’ or as Navaro-Yashin (2007, 93) put it ‘“legal” procedures … within the confines of an “illegal” state’? – not only ‘unmoor[s] the primacy of the nation-state as the sole entity able to confer legal identity on individuals’ (Sosnowski and Klem, this issue) but, as mentioned, challenges thereby orthodox understandings of the State and governance, of citizenship, of statelessness and of the nature of law itself.

Parallel binaries and nuances in international law

The editors appreciate that the ‘legal status and degree of political recognition of these types of states is evidently of crucial importance to the issues we study’ (Sosnowski and Klem, this issue). Yet, they argue also that the categories available in international law to meet the demands are structurally inadequate, describing how binary categories such as sovereign/non-sovereign, valid/invalid, authority/insurgency or legal/illegal ‘leave us with a crude set of terms based on somewhat arbitrary distinctions and boundaries’ (this issue).

The binaries that do exist within the logic of the international legal system, and the critiques made of them, must give international lawyers some pause for thought. This is especially so when the critique is combined with arguments recognising the role of international law – often promoted as an antidote to problems of statelessness or lack of recognized legal identity, that is, the notion that simply ensuring that citizenship is granted to each individual fixes the problem – not only as not necessarily able to deliver on its promises but lying directly behind the structure of the system which has resulted in the exclusion of many people in the first place (see Lloydd 2021, 365).

Nevertheless, I have previously argued that precisely because of those important observations and critiques of the operation and limits of the law, we must not reject or refuse to deal with it. Rather, it becomes important to pay even closer attention to the law (Lloydd 2021, 365). In the same way, by getting somehow to the heart of the matter, the interdisciplinary perspectives in this collection encourage me back to an appreciation of my own discipline of international law and allow a better-equipped understanding of it. These perspectives might help us see how international law works with overly crude binaries in one sense, but how it is also very practised in more nuanced categorisations and work-arounds.

The argumentative nature of international law supports the reality that within, say, the seeming binary of state/non-state, there are layers of recognition whereby some states recognise the entity as a State and others do not, or some recognise it for some purposes but not others, or a non-state entity might act as proxy for a State. For example, Ramesh Ganohariti’s piece (this issue) on three aspirant states (Abkhazia, South Ossetia and Transnistria) discusses the liminal nature of legal identity documents due to non-recognition of their conferring authority but nevertheless how recognition of documents from these de facto states assume myriad forms. Thomas McGee’s (this issue) discussion of the practices of the Kurdish-led self-administration in Syria around legal identity documentation, which includes provision but also restraint in provision, shows the complex co-existence of state and non-state, described as ‘compromise combined with competition’. William Grant-Brook (this issue) describes how the non-state actor Hay’at Tahrir al-Sham in Syria ‘performs’ sovereignty and statehood precisely through legal identity provision practices.

Such nuances are not restricted to situations involving non-state armed groups and armed conflict. For example, the international human right to enter, remain and return to ‘one’s own country’, enshrined in the International Covenant on Civil and Political Rights (Art 12(4)), arguably means something different from an individual’s country of citizenship (Taylor 2020, 346–349). Recent deportations of long-term Australian residents but solely New Zealand citizens on paper (due to criminal records leading to character requirements for residency no longer being met) were, for example, decried by New Zealand’s then Prime Minister Jacinda Ardern who argued that Australia could ‘send back Kiwis. Genuine Kiwis. Do not deport your people and your problems’ (quoted in Remeikis 2020).

Recognising such nuances might be protective of people’s rights and allow life and legal processes to go on for practical reasons. Depending on the circumstances, however, admittedly they might also blur realities or avoid providing fuller rights. For example, in relation to the notion of citizenship and nationality, so-called non-citizens such as Russian-speaking minorities in Latvia and Estonia might not be considered stateless by their State authorities where their rights are otherwise approximated to those of citizens (see discussion in Sardelić 2021, 119–122).

Similarly, the granting of citizenship is not always an outright good – it is not simply a case of ‘the more, the merrier’ precisely because nationality is political, strategic, cultural and affective. Nationality attribution can be considered oppressive or at least lead to disputes between States (e.g. Ganohariti 2021, 2023). For example, Immanuel (this issue) discusses Morocco’s issuing of documents to Sahrawis as a violation of their right to nationality. The offer of citizenship to certain populations in eastern Ukraine has also been an issue connected to Russia’s aggression against Ukraine (e.g. Barbirotto 2022). See also McGee’s discussion of children born to Yezidi survivors of Islamic State group captivity and rape regarding the possibility of acquiring a ‘dangerously stigmatised nationality that associates the children with their perpetrator fathers’ (2020, 89). Moreover, holding the citizenship of a State will not necessarily be helpful or protective if one finds oneself in part of one’s country occupied by an enemy State or under the control of an opposition armed group.

All of this means that individuals can have an important relationship with the State as well as with the unrecognised authorities, armed group or occupying State under whose control they may be living, whether or not they are recognised as a citizen by any of them. Sometimes that relationship might be one of vulnerability or denial of rights (Bloom 2018).

The contributions to this Special Issue demonstrate such different types and layers of nationality and ‘constellations’ of citizenship (Bauböck 2010). In other words, the contributions somehow demonstrate the limits of the law when faced with these contexts and also all the ways the law also copes with nuance, uncertainty and plurality in practice.

Many of those constellations might represent so-called combative legal pluralism, where ‘state and nonstate systems are overtly hostile to one another’ (Swenson 2018, 443) but there is also mutual compromise (see, e.g., McGee, this issue). Because such ‘looking-glass’ approaches are informed by concerns for social justice and ethics, they encourage us to examine and perhaps insist on nuance in the law where it exists, where it helps to protect rights and care for the Other, and to also better understand the lack of nuance and on what it depends. For example, in terms of the state-based international legal order, international law will react differently to non-state attempts to issue birth, death or marriage certificates than to the attempted granting of nationality or passports, which goes much more directly to the heart of sovereign competencies.

Recognising such existing nuance in international law is not to argue that the law has it all figured out and has everything covered. Nor is it to simplistically suggest that all of the described binaries are ‘bad’ or unhelpful. Rather, I am suggesting that somehow the nuance is already there and that it continues to be sorely needed in order to put people and their needs first when they find themselves in a ‘looking-glass world’. Thus, collections such as this one simultaneously ‘prove’ and ‘disprove’ the described binaries, illuminating the messy, nuanced way that international law is argued and plays out.

This approach seems to align with so-called new legal realism which has been described as tending to involve

the empirical study of how formal legal processes and institutions interact with social, economic, political, and cultural contexts and factors, with a particular focus on their impacts on the lives of ordinary people … a concern for policy and social change that is cognizant of the failings of law as a tool for progress, but that nonetheless seeks to identify ‘spaces for positive social change in and around the law’… seeks to understand law and international law in a transnational perspective and … embraces a wide variety of research methods, including social science qualitative methods as well as more conventional doctrinal analysis (Jodoin and Lofts. (2014, 36–337, citations omitted)

Such an approach perhaps violates the role of critical theory by undertaking problem-solving (Cox 1981), trying to reform or improve compliance with law that has been exposed as maintaining injustice (Jodoin and Lofts 2014, 334) or being found structurally inadequate (Sosnowksi and Klem, this issue). However, I am sympathetic here to how critical international law can live with – indeed expose – paradoxes and dispel illusions, just like a jester’s questions, for example, by ‘highlighting the way in which [international law] marginalizes certain voices, issues, and concerns’ (Jodoin and Lofts 2014, 328) but also be of use in thinking about the change and action required in practical terms. The humanitarian imperative in the need to respond to the risks people face (see further below) appears particularly relevant to this topic because, to a relatively large extent, it has been humanitarian and development practitioners who have witnessed the challenges faced by individuals living in areas under non-state control and been able to provide information to researchers (e.g. Bittar et al. 2022) or raise their own voices (e.g. Adyczyk and Doumit, this issue; International Rescue Committee 2016; Norwegian Refugee Council 2018; Unicef 2007).

Such an approach stays engaged rather than paralyzed from disillusionment (see Singh and Mayer 2014, 26; Jodoin and Lofts 2014, 330) and guided ethically by concern for others, ‘pushing the boundaries of legal interpretation and attempting to move the law forward in strategic directions’ (Jodoin and Lofts 2014, 341). It does so in spite of and actually better equipped and more self-aware because of the insight gained from the critique.

Finding necessary nuance in the ‘paperwork parts’ of international humanitarian law

Durham and Leins (2024) recently wrote about the polarization and oversimplified narratives of binaries related to situations of armed conflict: ‘winners and losers, heroes and victims, rules or lawlessness’ They argued, as I am here, for the importance of nuanced examination of IHL and the inclusion of ‘voices and perspectives previously left at the edges or outside the door with the common language of IHL’. They specifically mention questions regarding the interplay of IHL with the now vital themes of climate change and technology but also gender and minoritised groups, into which many legal identity issues would fall, arguing that such themes can no longer be deemed secondary.

I turn, then, to discuss IHL related to legal identity as an example of identifying necessary, productive nuances in international law and within relevant legal argumentation raised by some of the pieces in the Special Issue. On the topic of legal identity under insurgencies and unrecognized states, IHL lends itself well to this kind of insistence on the law, despite critiques of IHL as a body of law as not only seeking to restrain physical violence but also allowing it (see, e.g., Lloydd 2024, 36–38).

There are presently more than 100 armed conflicts around the world (Geneva Academy of International humanitarian Law and Human Rights 2024) and a staggering 195 million people estimated to be living in areas with contested political control including 64 million in areas fully controlled by armed groups (Bamber-Zryd 2023). The questions being examined in this Special Issue relate to the provision of legal identity in such circumstances. The authors are clearly not only concerned with legal identity documents as ‘bits of bureaucracy’ – how to get a birth certificate or how to renew a passport when the office for those services is closed, destroyed or hard to access due to fighting – although such practical challenges can also be important issues during war (see, e.g., Dhiman and Harbers, this issue, re India; UNICEF 2007 re birth registration). Rather, questions related to legal identity and its necessary data and documentation reflect more complex social and political realities in people‘s lived experiences, both as part of a community and as something intimately personal. During armed conflict, this can relate to how people are seen, where they may go, what they may do, whether they will be accepted, rejected, allowed to pass, arrested, killed, respected or discriminated against. It can also relate to how people perceive themselves, and to their feelings and strategies towards legal identity documents in the circumstances of conflict, opposition or occupation in which they may find themselves.

The impact of these belligerent relations on legal identity is therefore far from fringe issues and these particular humanitarian consequences of armed conflict deserve greater attention.

As mentioned above, legal Identity is most closely linked with and understood as a human rights and development issue. Yet, all of the contexts and issues discussed in the contributions to this special issue involve not only development and social justice but violence and contest – belligerent relations – at least of some kind and at some time. Thus, when thinking about legal identity in insurgencies and in aspirant states, IHL is entirely relevant alongside human rights to the situations being discussed.

IHL is a body of law regulating how wars are fought and seeking, for humanitarian reasons, to protect civilians and civilian objects from harm, as well as placing other important restraints on the actions of the warring parties. Designed specifically for situations involving violent belligerent relations between various actors, IHL is well placed in terms of the nuances and messiness of the situations examined in this Special Issue. That is because IHL already acknowledges the role of non-state actors and places responsibilities upon them. Within the logic of IHL, the parties to an armed conflict, whether state or non-state, have reciprocal obligations. In short, while the actions of an armed group in taking up arms against the state will violate that country’s domestic law, or the actions of a State intervening in another State might violate international legal rules regulating the use of force, IHL remains ambiguous on such matters, seeking (only) to place certain restrictions upon how the parties fight when armed conflict occurs. So, IHL is ‘not scrupled by the supposed illegality of these movements’ (Sosnowski and Klem, this issue), at least not immediately. IHL does not intend to give legal legitimacy to a non-state armed group but recognizes, for humanitarian reasons, the reality of the group’s presence and actions and, thus, the need for it to protect civilians affected by the fighting.

At first glance, IHL does not have too much to say about legal identity. For a start, the greatest attention is generally given to IHL rules related to the conduct of hostilities, followed by rules regulating detention as relevant situations arise, and then perhaps rules on the facilitation of humanitarian assistance. In contrast, the ‘paperwork parts’ of IHL seeking to prevent people going missing and to provide information on the fate and whereabouts of people to their families are often given less attention.

Those ‘paperwork’ rules within IHL related to the maintenance of family contact and sharing of information related to those detained, injured, killed or missing do not place explicit obligations on non-state armed groups regarding legal identity documents such as birth registration (Casalin et al. 2021, 6; Fortin 2021, 47; Hampton 2019, 522–525; Hampton and Petkova Khan, this issue; International Committee of the Red Cross 2003 Section III). However, based on an understanding of the risks and vulnerabilities faced by people affected by armed conflict and IHL’s underlying purposes, arguments have been made that IHL implies such powers.

Investigation of legal identity practices and experiences in areas outside the control of internationally recognised States leads to the argument that rather than rejecting non-state actor conferrals of identity or considering related documents as simply illegal and to be ignored, it becomes important to understand that often in such situations, those documents simply have to be relied upon by people in various ways when they are faced with a situation of armed conflict (Fortin, Klem, and Sosnowski 2021). Moreover, their issuance can serve an important humanitarian purpose by increasing protection for the civilian population (Hampton 2019, 534–535), for example, allowing them to move (or to remain) or to access other rights. In precisely the same way, greater attention should be given to the significant numbers of people living in areas under some sort of control of armed groups as mentioned above, the evidence that armed conflict creates challenges or even makes it impossible for communities to access required civil documentation and that legal identity documentation, or lack thereof, can result in discrimination, dehumanisation, lack of access to other rights, and physical violence (see, e.g., Adamczyk and Doumit, this issue; Dhiman and Harbers, this issue; Fortin 2021; International Committee of the Red Cross 2023, 86–87; Kasianenko 2021). This gives some perspective to the vital humanitarian significance of questions related to legal identity during armed conflict and in its aftermath in contested territories.

Faced with such a reality, scholars have made the case for legal identity – for the person in question, even if deceased, and for their family – to be considered part of the fundamental duty of humane treatment of the civilian population, among other relevant IHL rules. As such, they compellingly argue for an implied power under IHL for armed groups to issue certain documentation needed by the population (Hampton 2019, 526 re birth certificates; Hampton and Petkova Khan (this issue), re death certificates. See also (Fortin 2021), 48 (International Committee of the Red Cross 2003), Annex J on 116). This is in circumstances in which a group has control over territory and affects aspects of the population’s day-to-day lives, even where those issues may not at first seem directly conflict-related (see Casalin et al. 2021, 4).

With that argument made, the importance of States recognising at least the verifiable data contained within such documents is then put forth (Hampton and Petkova Khan, this issue; Hampton 2019, 531–535; International Committee of the Red Cross 2023, Recommendation 45 on 18). ICRC has long recommended practices through which essential information about the dead can be collected from direct witnesses for transmission to families and State authorities, which could then issue death certificates on the basis of such information assuming it meets certain standards (International Committee of the Red Cross 2003, see, e.g., 6.5, 33.2B, 35.1Bd). Such information could in principle be provided through documentation/attestations of knowledge of death issued by an armed group.

Certainly, States suffering armed conflicts such as Ukraine are having to grapple with how to formally recognise documentation issued by non-state authorities (e.g. Kasianenko 2021). Although the highly political and sensitive nature of death certificates and forensic work – even simply casualty rates themselves – in a warzone is obvious, such a state procedure investigating the veracity of information contained in non-state documentation could form part of a larger mechanism to clarify the fate and whereabouts of missing persons due to armed conflict or other crisis.

In this sense, the binary is held in place – a non-state actor does not change its legal status by issuing lifecycle documentation. Yet, compromises or practicalities prove important to achieve IHL’s aims of the protection of civilians. Thus, the argument that armed groups actually should be undertaking these activities related to issuing certain documentation and not only that one must accept that in practice this will happen appears robust. That is, at least when it is undertaken for humanitarian purposes, which the contributions to the Special Issue admittedly evidence is not always, or at least not often wholly, the case.

With a credibility of voice from their professional experiences, Adamczyk and Doumit (this issue) describe practices of humanitarian and development actors related to the issuing of civil documentation in Northwest Syria. The authors do not shy away from addressing the operational dilemmas that can exist for organisations working on these matters with de facto systems and the practical challenges and risks experienced by the affected populations. It is true that regarding any essential or civic service provided in areas under the control of an insurgent group, whether the provision of water or sanitation, electricity or legal identity-related registration and documentation, the highly political nature of such services due to their relation to governance and perhaps perceptions of legitimacy or ‘strength’ of the actor claiming authority, means that organisations wishing to support affected populations in gaining necessary documentation risk building up the capacities of structures parallel to the official state structures.

The important call in articles such as Hampton and Petkova Khan’s regarding death certificates (this issue) is for States to likewise acknowledge the pragmatic need for non-state groups to be involved in legal identity documentation during armed conflict as a manner of implementation of the law for the benefit of the civilian population. Given the range of political and personal perceptions and emotions inherent to legal identity questions, this has the further benefit of allowing civilians, in the words of International Committee of the Red Cross (2023, 18), to ‘meaningfully access their legal rights without discrimination or retribution’. The point, really, is that civilians be able to remain ‘neutral’ regardless of any political affiliation; to ensure that people are not stigmatised or discriminated against, dehumanised or stripped of rights, because of perceptions based on the powers under whose control they are living.

Returning to a jester’s paradoxes, it might also be observed that by acknowledging the role, or perhaps even the duty, of non-state actors to document life-cycle events in areas under their control during armed conflict, the affected State could actually re-assert its own privileged legitimacy as a State authority. For example, rather than legitimizsng the non-state actor, by assuming the power of assessing as reliable or not the information provided by the non-state actor, i.e. by acknowledging the parallel pluralities, the State might actually also reinforce the orthodox binary understanding of State and non-state.

Concluding reflections

How legal identity is governed is itself highly nuanced and contextual as this collection demonstrates. Our thinking about international law – the work that it does and the work that it should perhaps be doing – needs likewise to be nuanced, somehow holding together that paradox of universal principle and grounded application. It is not, then, that international law has all the answers covered, but that there are seemingly many more layers, compromises and nuances than is sometimes assumed.

If the legal literature on statelessness and legal identity tends to ignore non-state authorities as anathema to the international state-based order and meanwhile, legal literature on rebel governance discusses international human rights and humanitarian law but tends to ignore legal identity questions (Fortin, Klem, and Sosnowski 2021, 131), then it is through increased cognizance of the broader picture of legal identity offered by the careful, grounded interdisciplinary offerings like those in this Special Issue that we can start to properly see and be encouraged back, better-equipped, to international law to ensure a pragmatic and people-first approach.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. Defined as an individual ‘who is not considered a national by any State under the operation of its law’ in art 1(1), Convention relating to the Status of Stateless Persons, 360 UNTS 117 (opened for signature 28 September 1954, entered into force 6 June 1960).