Non-State Actors and International Humanitarian Law

Charlotte Ku

Prepared for the International Humanitarian Law WorkshopMarch 1, 2014

1949 Geneva Conventions

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Common Article 2: “…the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties…”

Common Article 3: “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties…”

1977 Protocols to the 1949 Conventions

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Protocol I (173 parties) included a provision to extend coverage of common Article 2 to “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination…”

Protocol II (167 parties) sought to extend coverage of common Article 3 to “armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations…”

Graduated List of IHL Regimes

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• Disturbances and tensions such as riots

• Armed conflicts “not of an international character” within the territory of a state

• Armed conflict against colonial domination, occupation, and racist regimes

• Full international armed conflict and declared war

Prosecutor v. Tadić(ICTY 1995)

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…an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.

IHL applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts; a peaceful settlement is achieved.

IHL….applies in the whole of the territory under the control of a party whether or not actual combat takes place there.

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Terrorists as Non-State Actors

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1963 Offences and Certain Other Acts Committed on Board Aircraft

1970 Convention for the Suppression of Unlawful Seizure of Aircraft

1999 International Convention for the Suppression of the Financing of Terrorism

Military Order, 13 November 2001

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International terrorists, including members of al Qaida, have carried out attacks on United States diplomatic and military personnel and facilities abroad and on citizens and property within the United States on a scale that has created a state of armed conflict that requires the use of the United States Armed Forces.

Presidential Memorandum7 February 2007

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…the war against terrorism ushers in a new paradigm, one in which groups with broad, international reach commit horrific acts against innocent civilians, sometimes with the direct support of states. Our nation recognizes that this new paradigm – ushered in not by us, but by terrorists – requires new thinking in the law of war, but thinking that should nevertheless be consistent with the principles of Geneva.

ICRC View

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The 1949 Geneva Conventions and the rules of customary international law were fully applicable to that international armed conflict, which involved the U.S. led coalition, on the one side, and Afghanistan, on the other side.

[As to terrorists]: [o]n the basis of currently available factual evidence it is doubtful whether these groups and networks can be characterized as a ‘party’ to a conflict within the meaning of IHL.

Options for Applying IHL to Terrorism

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Equate terrorism to armed conflict

Treat terrorism as domestic or even international crime

Ad hoc determinations based on scale and location

2008 ICRC Interpretive Guidance

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civilians whose “continuous function is to take part in hostilities” could be considered combatants

-- not the same as the traditional uniformed combatant

-- but also not treated as a protected civilian

However, the level of force could be used against such individuals should not exceed what is needed in order to meet a military objective.

IHL and other Non-State Actors:The United Nations

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1999 United Nations Secretary-General’s Bulletin, “Observance by United Nations forces of international humanitarian law”:

the fundamental principles and rules of international humanitarian law …. are applicable to United Nations forces in situations of armed conflict they are actively engaged therein as combatants… They are accordingly applicable in enforcement actions, or in peacekeeping operations when the use of force is permitted in self-defence.

IHL and other Non-State Actors:The United Nations

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Peacekeeping Fact Sheet (as of 31 December 2013)

Peacekeeping operations since 1948: 68Current peacekeeping operations: 15Uniformed personnel: 97,904

Troops: 83,008 Police: 13,053Military observers: 1,843

Civilian personnel: 16,822 (as of 31 August 2013)International: 5,128Local: 11,694

UN Volunteers: 2,029Total number of personnel serving in 15 peacekeeping operations: 116,755 Countries contributing uniformed personnel: 122 Total fatalities: 3,186

IHL and other Non-State Actors:The United Nations

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We will comply with the Guidelines on InternationalHumanitarian Law for Forces Undertaking UnitedNations Peacekeeping Operations and the applica-ble portions of the Universal Declaration of HumanRights as the fundamental basis of our standards.

We will never:Commit any act that could result in physical, sexualor psychological harm or suffering to members ofthe local population, especially women and children

IHL and other Non-State Actors

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• Contractors

• Humanitarian Aid Organizations

The United Nations

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The United Nations

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