Since the mid-1990s, IHL has expanded its coverage of non-international armed conflicts. Various treaties have been drafted or revised to regulate states and armed groups party to such conflicts. Customary international law has gone through a similar expansion (Roberts and Sivakumaran, 2012). The term ‘armed groups’ is not defined in treaty law. As noted in this guide’s overview of international humanitarian law, in order to be classified as a non-international armed conflict, the parties involved must demonstrate a certain level of organisation. Organised armed groups are extremely diverse, however, ranging from those that are highly centralised (with a strong hierarchy and effective chain of command) to those that are decentralised (with semi-autonomous or splinter factions) (Mack, 2008). Groups may also differ in their level of territorial control; and their capacity to train members and to carry out disciplinary or punitive measures for IHL violations (Rondeau, 2011). The terms ‘organised armed group’, ‘non-state armed group’ and ‘armed group’ will be used interchangeably in this section.
Under what basis is IHL considered binding on non-state armed groups?
IHL binds all parties to non-international armed conflicts, whether state actors or organised armed groups. Various explanations are given to justify the binding force of IHL on armed groups. These include binding force via:
The state – the doctrine of legislative jurisdiction: this explanation, considered by some as the majority view, holds that IHL applies to armed groups because the ‘parent’ state has accepted the IHL rule(s). It is based on the capacity and right of a state to legislate for all its nationals and to impose upon them obligations that originate from international law. Organised armed groups may reject such an explanation, however, on the grounds this is the same state against which they are fighting(Kleffner, 2011).
Individuals: the fact that individuals can be held accountable for war crimes demonstrates that they are subject to duties that stem directly from IHL. Kleffner (2011) argues, however, that individual responsibility is not sufficient to justify the binding force of IHL on organised armed groups.
The exercise of de facto government forces: should an organised armed group carry out government functions and exercise effective sovereignty (or de facto authority), it may be argued that it is thus bound by IHL (Kleffner, 2011). Similar arguments have been made to justify the application of human rights obligations to non-state actors (Bellal et al., 2011). This degree of effectiveness is rarely met by armed groups, however (Kleffner, 2011). In addition, there is no clear legal indication of what level of ‘authority’ is required to trigger human rights obligations (Bellal et al., 2011).
International customary law – legal personality: armed groups that have reached a certain level of organisation, stability and effective control of territory can be considered to possess international legal personality. This renders them bound by customary international law (Kleffner, 2011). A similar argument is made regarding human rights law and the application of ‘general principles of law recognised by civilised nations’. The International Law Association argues that armed groups are bound by core human rights norms that are part of jus cogens norms (Bellal et al., 2011).
These explanations can be beneficial as armed groups here are bound by the international community of states, rather than by the state against whom they fight. Nonetheless, so long as armed groups are excluded from these processes of law formation, their sense of ownership over the rules may still be weak (Kleffner, 2011; ICRC, 2005b).
Consent – special agreement or unilateral declaration: IHL can be binding on such groups due to their own consent, rather than being imposed. Common Article 3(2) of the Geneva Conventions encourages parties to a non-international armed conflict to conclude ‘special agreements’ through which all or parts of the other provisions of the Conventions (applicable to international armed conflict) are brought into force. There are various situations in which armed groups have entered into agreements with international organisations and states in which they accept certain IHL obligations (see box below: Operation Lifeline Sudan). Such agreements are considered to improve compliance by non-state groups. States are often unwilling, however, to enter into such agreements due to concerns about granting legitimacy to armed groups party to the conflict (Roberts and Sivakumaran, 2012; Pfanner, 2009). There are also concerns that it could lead to the argument that armed groups must consent to all rules in order to be considered bound by them (Kleffner, 2011).
Armed groups have also engaged in unilateral declarations of their acceptance of IHL rules. For example, various non-state actors have become party to the ‘Deeds of Commitment’, an instrument launched by Geneva Call to ban anti-personnel mines and to further protect children from the effects of armed conflict.
Operation Lifeline Sudan – An example of Negotiated Access
Operation Lifeline Sudan (OLS) materialized in April 1989 during the Second Sudanese Civil War between the Khartoum-based government in the North and the Sudan People’s Liberation Army (SPLA) in the South. Displacement and starvation occurred on a large scale. OLS involved a ‘negotiated access’ model, whereby a trilateral agreement was reached in 1989 by the United Nations, the Sudanese government and the SPLA in order to access affected areas in the South (and to a lesser extent the North). While originally based solely on ‘mutual understandings’, the OLS later adopted signed written agreements with the rebel movements on ‘ground rules’. These rules involved acknowledgement of the need for protection of civilians for aid delivery; the right of civilians to live in safety and dignity; and the principle that humanitarian assistance must be provided in accordance to considerations of need alone, independent of political factors. OLS set an important precedent that it is possible to negotiate access to areas of conflict; and to obtain acknowledgement from both warring sides of the need to provide civilians with humanitarian relief and to facilitate safe delivery. It contributed to the distribution of large amounts of food and other relief supplies to southern Sudan, which helped significantly in relieving famine and suffering. Despite an established system of ‘ground rules’, however, there were problems with accountability and the neutrality of humanitarian aid. Glaser (2005) argues that in practice, the rules were used more as a tool to provide safe access than as a means of holding rebel authorities accountable. There were various accusations that the SPLA was diverting aid meant for civilians and using it to feed their own soldiers (Philpot, 2011; Rigalo and Morrison, 2007; Glaser, 2005).
Should armed groups be involved in law creation?
It is commonly argued that non-state armed groups are unlikely to feel bound by rules that they had no part in developing, thus undermining compliance. There are various cases in which armed groups have given notice that they do not consider themselves bound by particular rules since they did not participate in their creation. In response, some scholars have advocated for the participation of non-state armed groups in law creation, in order to boost their sense of ownership, recognition of and compliance with IHL rules. The UN Secretary General has indicated that although engagement with such groups may be considered ‘unpalatable’ by some states, it is essential in order to promote respect for IHL and to protect civilians (Rondeau, 2011, 137). This suggestion faces much resistance, however, as states are reluctant to relinquish their exclusive law making powers (Roberts and Sivakumaran, 2012).
There are various concerns with this potential expansion in the sources of law. These are centred on views that it would affect the legal status of armed groups and increase their perceived legitimacy. Roberts and Sivakumaran (2012) argue that granting armed groups some role in lawmaking does not have to lead to any change in their legal status. There is no precedent to indicate that this would be a necessary outcome. Concerns over imparting legitimacy to armed groups are even more pronounced. The Government of Myanmar, for example, prevented UN entities from engaging with Burmese armed groups on child soldier issues due to their concerns over legitimising the groups. Another key concern, from the perspective of the international community, is that the involvement of armed groups in law creation could result in the downgrading of humanitarian law protections. This is related to the view that by granting such groups a role in lawmaking, they may declare that they are not bound by existing legal obligations to which they played no role in developing. It is thus important to ensure that the participation of armed groups is not equated to giving them a role equal to that of states or the license to dictate the content of the law (Roberts and Sivakumaran, 2012).
How to engage with armed groups?
Roberts and Sivakumaran (2012) highlight several ways in which armed groups could be incorporated into law creation:
- Encouraging them to engage in unilateral declarations and ‘special agreements’ that bind them to IHL rules.
- Integrating them into multilateral treaties, either by giving armed groups some role in treaty negotiation and/or recognising a right for armed groups to ratify or accede to the treaty.
- Allowing them to play a role in the creation of customary IHL (‘quasi-custom’), for example, through the publishing of their codes of conduct, internal orders, drafted constitutions and penal codes, many of which may contain IHL provisions (e.g. the Ejército Zapatista de Liberación Nacional (EZLN) of Mexico enacted a Revolutionary Women’s Law and the LTTE in Sri Lanka enacted a Child Protection Act). The legal status of these materials remains contentious, however. While the ICRC has stated that their legal significance is ‘unclear’, the ICTY has taken into account some of the practice of non-state armed groups in determining that various customary rules apply to non-international armed conflicts.
Bangerter (2009) provides some practical guidance on how to engage in dialogue with non-state armed groups and to persuade them to follow IHL rules. Merely explaining IHL and telling decision-makers and commanders about specific legal standards, while essential, is rarely sufficient to convince armed groups to comply. The following three principles are important to adopt in order to improve the chances of successful persuasion:
- Taking time to discuss: This process entails building a case over time and involves both parties exchanging ideas and asking questions, rather than simply stating a position.
- Sowing doubt rather than trying to convince: By creating a sense of doubt, it may become possible to find pragmatic solutions. For example, reminding a commander that child soldiers represent a command and control problem in military terms may render him or her more open to discussions to end child recruitment and to demobilize existing child soldiers.
- Appealing to the other person’s self-image: Most members of armed groups view themselves as part of a decent group, fighting for a noble cause, rather than as war criminals. Appealing to these positive convictions could result in their acceptance of certain protections.