Laws of Armed Conflict: the Role of Armed Non-State Actors

Prof. dr. An Cliquet, Laws of Armed Conflict, Law Faculty Universiteit Gent, 2014-

2015

Author: Laetitia Parmentier

(20012453)

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1. Introduction

1.1 Research goal In this paper I tend to understand the complex relation between armed non-state actors and the laws of

armed conflicts. In my opinion, this is an interesting research topic because of the manifest inadequacy

of the state-centric construct and the probably out-dated contents of the laws of armed conflict for armed

conflicts that are dominated by armed non-state actors.1 It is indispensable to appreciate the reasons for

this inconsistency between laws and practice just as it is time to create future perspectives for this big

challenge to the international community.

What is an armed non-state actor? In the context of the present paper, the notion of armed non-state

actor denotes a formally organized group that is party to a non-international armed conflict (and which

operates outside of state control).2 The media and the state actors use many other terms to point armed

non-state actors in armed conflicts, such as militias, rebels, insurgents, violent non-state actor,

terrorists or criminal gangs. Many rhetorical figures are being used (by media, state actors and

scholars alike) to describe armed non-state actors in armed conflicts, such as militias, rebels,

insurgents, violent non-state actor, terrorists or criminal gangs. The armed conflicts with non-

state actors are often called new conflicts; these conflicts are typically anarchistic, identity bound or

ethnic inspired. In the context of these armed conflicts, a lot of rhetoric is used, including war on terror

and the concept of failed states. Some examples of prominent opposition groups in non-international

armed conflicts3 are the parties in the conflict(s)in former Yugoslavia in 1990, the Taliban and Al-Qaeda

in Afghanistan, ISIS in Syria and Iraq, the parties in the civil war in Somalia, FARC in Columbia.4 The

defining quality of these new types of conflicts is asymmetry between the conflicting parties.5 There is

an enormous divergence in interests, strategy, and support among population, resources and

correspondingly different is the position between the state actor and the non-state actor towards

international humanitarian law, for historical and political reasons.

The growing position of non-state parties in armed conflicts can be positioned in a bigger scheme: where

non-state actors of all kinds (such as NGOs, multinational corporations, supranational organizations)

are becoming main actors on the international terrain. But the laws of armed conflicts are still very state-

centred, explainable from a historical perspective (where the preservation of state sovereignty place a

major role), visible in the form (treaties signed by state parties only, customary law formed by state

practice) and clear in the content (the minimalistic number and quality of rules for non-international

1 According to Uppsala Conflict Data Program were 24 out of 33 conflicts intrastate conflicts (= non-international armed conflicts), nine armed conflicts were internationalized intrastate conflicts and zero (!) interstate conflicts existed globally. UCDP Conflict Encyclopaedia: www.ucdp.uu.se/database, Uppsala University Department of Peace and Conflict Research. Date of retrieval: 15/01/02. 2 Inspired by the (more extended) definition by Geneva Call: The term armed non-State actors (ANSAs) encompasses a variety of entities. In the context of its mission, Geneva Call focuses on organized armed entities involved in internal armed conflicts that are primarily motivated by political goals, operate outside State control and therefore lack the legal capacity to become party to relevant international treaties. These include armed groups, de facto governing authorities and non- or partially internationally recognized States. Available on http://www.genevacall.org/how-we-work/armed-non-state-actors/. Date of retrieval: 15/01/02. 3 Non-international armed conflict is the name for a conflict where a non-state actor is opposed to a state on its territory (according to definition derived from Treaty law and jurisdiction, cfr. infra). However, the distinction between international and non- international armed conflicts (although summa divisio in laws of armed conflict) is increasingly irrelevant; in contemporary armed conflicts, internationalization of non-international conflicts is happening, where states or on the territory of another state fighting a non-state actor. For an actual example: at the moment, a multinational coalition is led by USA on the territory of Syria and Iraq in the fight against armed non-state actor called ISIS. 4 For a summary of the armed conflicts until 2013: Uppsala University, Department of Peace and Conflict Research Uppsala Conflict Data Program UCDP Conflict Encyclopaedia. Available on: www.ucdp.uu.se/database. Date of retrieval: 15/01/02. 5 M. SASSLI, The Role of Human Rights and International Humanitarian Law in New Types of Armed Conflicts, in: O. BEN-NAFTALI (ed.), International Human Rights and Humanitarian Law, Oxford, OUP, 2011, p. 38.

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armed conflicts). These dynamics result in a factual and theoretical complexity; the traditional treaty-

based laws of armed conflict are no longer representing the multi-facetted reality of an armed conflict.

The laws of armed conflicts have a humanitarian purpose, they seek to limit the effects of the armed

conflict and protect people who are not or are no longer participating in hostilities and restrict the means

and methods of warfare. The victims of non-international armed conflicts are predominantly civilians,

thus need for humanitarian protection in these conflicts is particularly high and at odds with the

troublesome relation with the laws of armed conflict.

1.2 Research questions In order to carry out the research, I will gradually search for the answers to the following series of

relevant questions.

What is the role/position of rebel groups in international humanitarian law? Why are armed non-

state actors bound by LOAC (or why not)? What are the repercussions on compliance with rules of

humanitarian law among armed non-state actors?

What are the causes and consequences of the ostensible legal vacuum in this field of international

law?

What can be done to bridge the gap between international humanitarian law and humanitarian needs

in armed conflicts involving non-state actors?

1.3 Methodology I will carry out a legal analysis of the position of armed non-state actors and international humanitarian

law by means of a descriptive and interpretative analysis of legal sources and legal doctrine. My prime

sources are the Treaties and rules that constitute the laws of armed conflict, and next to these, I found a

high number of scholar contributions interesting, which include particularly the articles and books by

authors as Sivamukaran, Ryngaert and Sassli and the publications by the international Committee of

the Red Cross.

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2. Research questions and answers

2.1. Armed conflicts and armed non-state actors. Outlining the framework.

2.1.1. States and armed conflicts

The laws of armed conflict are created in tempore non suspecto, when rebel groups were a marginal

phenomenon and the supremacy of states on the international scene was undisputable. The four Geneva

Conventions6 that constitute the core of international humanitarian law are a reflection of this state-

centric vision. The archetypical armed conflict described in these Conventions exists between states and

is logically called International Armed Conflict. Due to the very nature of this conflict, non-state

parties are irrelevant to these types of conflicts. The historical concept of the sovereign state7 is the

fundament of the humanitarian laws that aim to regulate the conduct and the effects of armed conflicts.

Armed opposition groups have always subsisted, but at the time of the emergence of international

humanitarian law, the state was the prime actor on the field of armed conflicts. The first historical source

mentioning armed non-state actors is the Martens-clause (cfr. infra); this clause was aimed to address

the francs-tireurs8 (guerrilla groups), because the laws of armed conflict conducted solely situations of

armed conflict between states, such as the Crimean war and World War I and II. In a later phase in the

20th Century led the armed conflicts to the emergency of new states (decolonization wars and

decomposition of Soviet-Union); the international community (i.e. state parties to the Geneva

Conventions) tried to seize this developments with the Additional Protocols to the Geneva Conventions

(ratification in 1977). These can be interpreted as an update of the Geneva Conventions in order to match

the contemporary conflicts going on at that time9. In the political vacuum after the end of the Cold War,

armed groups tried to rule areas where a reliable government was absent. From that period on, the laws

of armed conflict and the actual armed conflict only drifted more away from each other. As we will see

below, was APII (related to non-international armed conflicts) very limited in scope, content and overall

usefulness mainly because important parties in armed conflicts didnt ratify this Convention (cfr. infra

2.1.2).

Hence the historical development of laws of armed conflicts, these are aimed to address regular forces

of states. This primacy of the traditional state in laws of armed conflict is visible in the lack of legal

status of non-state actors.

Firstly, Id like to mention the position of non-state actors in ius ad bellum, which defines the

justifications to start an armed conflict, although ius ad bellum is not part of the laws of armed conflicts.

It is nevertheless interesting because it shows the same ideological mechanism as in ius in bellum: only

states have the right to resort to force, just like only fighters for state actor in international armed

conflicts can enjoy combatant status and protection. Following the state-centric paradigm in the field of

6 The first Geneva Convention was signed in 1864, but was subsequently extended and rewritten. The four Geneva Conventions that are currently in force are the following: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (first Geneva Convention). Geneva, 12 August 1949. Entered into force 21 October 1950; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949. Entered into force 21 October 1950; Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949. Entered into force 21 October 1950; Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. Entered into force 21 October 1950. 7 This concept is born in 1648, Peace of Westphalia. 8 M. SASSLI, The Role of Human Rights and International Humanitarian Law in New Types of Armed Conflicts, in: O. BEN-NAFTALI (ed.), International Human Rights and Humanitarian Law, Oxford, OUP, 2011, p. 38. 9 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I). 8 June 1977. Entered into force 7 December 1978. Art. 1 (4): The situations referred to in the preceding paragraph include 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, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.

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armed conflicts, non-state actors dont have an international legal personality and consequently, they

cannot be considered as legitimate belligerents. There is a general criminalization of the act of rebellion.

Rebels and armed insurgent groups are often considered as part of transnational terrorist networks in

the rhetoric of the war on terror.10 Some states treat the fighters of armed groups as unlawful

combatants, which is a new status beyond traditional laws of armed conflict. Member States are

reluctant to confer a formal status on those whom they consider insurgents or rebels because an

insurgency is viewed as an attack on the sovereignty of the state. Likewise use armed groups the lack of

legal personality as an argument to not comply with the rules.

In the global reality of today have armed conflicts gradually moved away from clearly defined

battlefields to populated areas, where civilians bear the burden of conflicts. Traditional war between

armies of opposing states has become a rare exception, while non-international conflicts, with armed

opposition groups take up arms against states or other armed groups, have become the most common

form of contemporary conflict. The characteristics of new conflicts do not correspond the archetypes

from Hague/Geneva conventions. For instance: armed groups use blending into the population a tactical

move.11 But this practice disregards the civilian/fighter-distinction that is an important principle in laws

of armed conflict. The void in present-day laws of armed conflicts is problematic for both the state party

and the armed non-state actor and most of all for the victims of armed conflicts, for whose protection

these laws are designated.

2.1.2. Non-international armed conflicts. Legal sources.

The scope of international humanitarian law is extended to non-state actors only in 1949 (article 3

common to the four Geneva conventions) and later more detailed in 1977 (Additional Protocol II to the

Geneva conventions). This late adoption of rules for relevant armed conflict indicates the reluctance of

states to include non-state actors in the framework of international humanitarian law. Moreover, the

provisions and treaties regarding non-international armed conflicts are remarkably less and less detailed

than the articles concerning international armed conflicts.

We find definitions for a non-international armed conflict in both aforementioned mini-Treaty (Article

3) and in Article 1(1) of Protocol II; this definition is further developed in jurisdiction and legal theory.

According to the generally accepted description, three elements required to constitute an armed conflict

of non-international nature: a certain level of organization of parties, a minimal intensity of the conflict,

and protracted violence.12 The threshold for qualification as non-international armed conflict for

application of Protocol II is even higher, with the additional conditions that real control over territory.13

It is obvious that this definition covers only a limited number of contemporary conflicts;14 the extended

Protocol-definition does not extend to conflicts between different non-state actors and the conditions of

minimal organisation and the demanded high intensity of violence excludes several non-state actors who

10 V. BERNARD, Editorial: understanding armed groups and the law, 93 International Review of the Red Cross, 2011, p. 262. 11 V. BERNARD, supra n. 10, p. 262. 12 ICTY (Decision) 7 Mai 1997, Prosecutor v. Tadic, Case IT-94-1-AR72, trial Chamber, para156. Available on http://www.icty.org/x/cases/tadic/tjug/en/tad-tsj70507JT2-e.pdf; Date of retrieval15/01/08. International Criminal Tribune

for the Yugoslavia: protracted violence between governmental authorities and organized armed groups or between such

groups within a state. 13 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II). Geneva, 8 June 1977. Entered into force 7 December 1978. Art. 1(1). 14 Examples of armed groups in NIAC that meet the requirements: Revolutionary Armed Forces of Columbia (FARC), Liberation Tigers of Tamil Eelan (LTTE), Sudan Peoples Liberation Army, in: A. ROBERTS & S. SIVAMUKARAN, Lawmaking by nonstate actors: engaging armed groups in the creation of international Humanitarian Law, 37 Yale Journal of International Law, 2012, p.107.

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are involved in a quasi-armed conflict.15 States are unwilling to recognize the existence of an armed

conflict, in line with their refusal to accept the legal status of an armed non-state actor and to conclude

bilateral agreements regarding rules of humanitarian law.16

The laws of armed conflict are historically created for international armed conflicts, by state parties to

these types of conflict in their own interest. These laws are covering the contemporary non-international

armed conflicts only very limited, both in dimension and content. This situation is a legal vacuum, which

could lead to a deadlock-situation where laws of armed conflict risk to become obsolete and unnecessary

since the world has evolved beyond the state-oriented vision represented in the Treaties.

Apart from the question if the new conflicts qualify as classical non-international armed conflicts, it

remains uncertain whether the Conventions with international humanitarian law apply to non-state

actors in allegedly new types of conflicts. The laws of armed conflict are created from a humanitarian

point of view, i.e. to regulate the hostilities in order to reduce or avoid human suffering while taking in

account the military necessity. They are of paramount value, also and especially in non-international

armed conflict. But with the appearance of non-state parties playing a major role in armed conflicts, the

application scope for humanitarian law is seriously narrowed.

Now, what is actually stipulated in humanitarian law that relates to armed non-state actors? The article

that has the widest application scope (including armed opposition groups)17 is article 3 common to the

four Geneva Conventions (also considered as minimal Treaty on non-international armed conflicts). It

is addressing () the case of armed conflict not of an international character occurring in the territory

of one of the High Contracting Parties, and contains the minimum provisions that each Party to the

conflict shall be bound to apply. The Article includes indiscriminate protection of persons taking no

active part in the hostilities, and the care for wounded and sick, with mention for ICRC.18 Of special

importance are Article 3 (() Parties to the conflict should further endeavour to bring into force, by

means of special agreements, all or part of the other provisions of the present Convention) and Article

4 (The application of the preceding provisions shall not affect the legal status of the Parties to the

conflict). These articles are proof of the minimal and debated nature of these provisions: although non-

state parties are receiving few minimal rights and duties (not trespassing the core of human rights), there

is no opening for them to extract a legal personality.

The second Additional Protocol, develops and supplements Article 3 common to the Geneva

Conventions and shall apply to all armed conflicts which are not covered by Article 1 of the Protocol

Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of

International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting

Party. It has a more restricted application than Article 3 because of the extra condition of territorial

control by a non-state actor. Moreover, in Article 1 (2) of AP II a lot of situations are excluded: This

Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and

sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.

15 M. SASSLI, supra n. 8 , p. 46. Sassli also writes interesting general thoughts on applying the old law and (sic) new situations: the distinction between de lege lata and de lege ferenda is in international law more relative than in domestic law; hereby implying that this problem of a humanitarian framework which is not matching the real armed conflicts is also relative. 16 International Committee of the Red Cross, Increasing respect for international humanitarian law in non-international armed conflicts (2008), available at https://www.icrc.org/eng/assets/files/other/icrc_002_0923.pdf; date of retrieval 15/01/03. 17 See Military and Paramilitary Activities In and Against Nicaragua, 1986 I.C.J. Reports p.114, paras 218 and 219. 18 Art. 3 (1) common to four Geneva Conventions.

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With regard to the application it is noteworthy that major state parties in non-international or

internationalized internal conflicts did not ratify Additional Protocol II19; the only serious attempt to set

out rules for the conduct of a non-international armed conflict is merely a dead letter.

Next to these two legal sources; a third source is generally considered applicable to non-state armed

forces, the aforementioned Martens clause. The original clause dates from 1899 and is now formulated

in article 1(2) of Additional Protocol I: In cases not covered by this Protocol or by other international

agreements, civilians and combatants remain under the protection and authority of the principles of

international law derived from established custom, from the principles of humanity and from the dictates

of public conscience.

This clause is directly referring to customary law as a principal source of laws of armed conflict. The

ICRC has made big attempts to codify the customary law20, notwithstanding there is debate about the

application for non-state parties, because these are not creating customary law, which is derived from

state practice. Not only the Treaties, but also the customs are essentially state-centric. There is a

legitimacy deficit for all legal sources in non-international armed conflicts.

Several legal scholars attempted to explain the binding character of Conventions and customary law for

armed groups. In the majority view, armed opposition groups in an armed conflict are bound by the laws

of armed conflict because armed groups are active on the territory of the state, which is contracting party

to the relevant conventions. Another motivation is deducted from international criminal law, which is

binding for non-state actors too; scholars argue that the underlying principles to these criminal laws are

the laws of armed conflict. However big the common ground to both fields of international law, the

criminal laws are appealing to individual responsibility, whereas I want to research the liability of armed

groups in the context of humanitarian law. A third argument in favour of the application of laws of

armed conflicts to armed opposition groups is the degree of de facto control over territory, which is

proportional to the binding character of humanitarian law.21

As before is discussed, there are several strong arguments in favour of the application of customary law

for non-state actors, but none of them is satisfying to firmly declare that the whole of laws of armed

conflict apply to any non-state actor that is involved in an armed conflict (noting well that the very

definition of armed conflict is derived from the same Conventions regarding the conduct of armed

conflicts). The main reason for this legal vacuum is the historical and constitutional nature of laws of

armed conflicts in the form of conventions to which only states can be parties.

For various reasons, we can conclude that the application scope of laws of armed conflicts for armed

groups is limited, due to the limited provisions devoted to the expanding phenomenon of non-

international armed conflict, due to the reluctance of states to involve non-state actors in the field of

humanitarian law and because of the multiple arguments which are used not to classify a conflict within

the legal framework of armed conflicts.

19 AP II is not ratified by USA, Pakistan, Isral, Iran, Turkey and Iraq. 20 The ICRC study on customary International Humanitarian Law (after ten years of research) concludes that 136 (and arguably even 141) out of 161 rules of customary humanitarian law, many of which are based on rules of Protocol I applicable as a treaty to international armed conflicts, apply equally to non-international armed conflicts. See: M. SASSLI, A.A. BOUVIER and A. QUINTIN, How does law protect in war? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, 3 volumes, 3rd edition, 2011, p. 23, available on https://www.icrc.org/eng/assets/files/publications/icrc-0739-part-i.pdf, retrieval date: 21 C. RYNGAERT, Non-state actors and International Humanitarian Law in J. d'ASPREMONT (ed.), Participants in the International Legal System. Multiple Perspectives on Non-State Actors in International Law, London, Routledge, 2011, p. 286-287.

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Whether humanitarian law is binding for non-state actors is particularly relevant for two situations in

non-international armed conflicts: the killing and detention of fighters.2223 Even if we assume the

binding character of provisions in the Treaties concerning non-state actors, the level of protection for

fighters is very low compared to combatant-protection in international armed conflicts. Most significant

is that there is no POW-status for combatants on the side of the non-state actor. Prisoner of war is a

privileged status mentioned in the third Geneva Convention.24 According to laws of armed conflicts, this

POW-status applies to lawful combatants, those who are belonging to a regular state army or militias

incorporated in regular armed forces. Every civilian who takes up arms against the government becomes

legitimate target in international humanitarian law.25 The state actor considers combatants of a non-state

party as criminals. As well-known example Id like to mention the conflict between USA and armed

opposition groups as Taliban and Al-Qaeda on the territory of Afghanistan; which is called war on

terror at the time when George Bush Jr. was president of USA. This conflict could be considered as an

armed conflict under International Humanitarian Law, but the American government takes prisoners as

unlawful combatants with an illegal status, neither civilians nor combatants. This and many other

examples show the current insufficiency of existing laws of armed conflict.

2.2. Legitimacy deficit and the norm enforceability gap: a legal vacuum In the previous chapters, I gave a short overview of the legal situation of armed non-state actors within

the laws of armed conflict. I came to the conclusion that the real share of armed opposition groups in

armed conflicts is not in relation to their position in humanitarian law. There is a legal vacuum; in this

chapter, Id like to set out the reasons and consequences for this gap.

First of all, the aforementioned supremacy of the state in the creation and application of norms of armed

conflicts is naturally opposed to the recognition of a role of non-state actors in this legal field. This

refusal is defended on the pretext of evicting legitimization of rebellion and armed opposition.26

States are reluctant to qualify a conflict as a non-international armed conflict, furthermore there are other

elements that lead to a deficit in the legitimacy of rules applicable on non-international armed conflicts.

Protocol II to the Geneva Conventions, the most complete collection of rules for armed conflicts

involving non-state actors has a serious handicap: a few very important state actors are not party to the

Protocol, so that it is almost never applied27. The Chechnya conflict between Russia and Chechnyan

insurgents shows us that even state who did ratify the protocol dont always comply with it; whereas

Russia called it an armed conflict, it refused to apply AP II (although party to the protocol) and

renamed it as a counter-terrorist operation28.

The laws of armed conflicts purport to bind non-state actors, like rebel groups and terrorists.29 However,

the ratio for this purported binding character of Article 3 and APII remains somewhat elusive. This

22 In this paper, I use the term fighter for a member of an armed group whose function is fighting (governmental armed

forces are included in this definition). Similarly: Fighters are members of armed forces and dissident armed forces or other organized armed groups, or taking an active (direct) part in hostilities. M.N. SCHMITT, H.B. GARRAWAY and Y. DINSTEIN (eds.), The Manual on the Law of Non- International Armed Conflict, With Commentary, Sanremo, International Institute of Humanitarian Law, 2006, 66 p. 23 The term fighter is not appearing in any binding treaty, but it is preferably to use fighter instead of combatant in order to avoid confusion with international armed conflicts. 24 Third Geneva Convention art. 4. 25 AP II to the four Geneva Conventions, art. 13, 3. 26 F. BUGNION, Jus ad Bellum, Jus in Bello and Non-International Armed Conflicts, in 6 Yearbook of International Humanitarian Law, 2003 (2007), p. 2. 27 Only precedent of application of Additional Protocol is during the civil war of El Salvador; M. COGEN, The Comprehensive Guide to International Law, Bruges, Die Keure, 2008, p. 489. 28 M. COGEN, supra n. 27, p. 490. 29 In this purpose, international humanitarian law is unlike international environmental law and international trade law, which directly regulate only the actions of states. In: K.J. HELLER, On a Differential Law of War, an Answer, 52 Harvard International Law Journal, 2011, 243.

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assumption has no legal basis; it is widely accepted as a fait accompli30 (cfr. supra 1.2.2). The lack of

consent of non-actors (legitimacy deficit) to the body of international humanitarian law is generally not

considered as the most convincing argument for the lack of legal basis of the application of humanitarian

law to non-state actors.31 However, enhancing the involvement of non-state actors in the humanitarian

laws per se is conceived as one of the keys to overcome the current deadlock-situation and lead to a

higher protection for civilians and combatants in armed conflicts.

Concluding, it is evident that the limited binding of armed non-state actors to International Humanitarian

Law, combined with a very limited protection (see supra 1.2.2: unlawful combatants, no prisoner of

war-status) leads to limited compliance with the humanitarian rules of armed conflicts; there is actually

a norm-enforceability gap due to the legitimacy problem. Above I reviewed the legal vacuum (from a

philosophical and historical point of view) as a major reason for the lack of compliance with

humanitarian law in non-international armed conflicts. Naturally this is only partly the reason why

armed opposition groups breach rules of armed conflict. Armed opposition groups will, by the nature

of there rebellion, resort more often to indiscriminate attacks than state actors.

The effects of the legal vacuum are contra-natural to the purpose of humanitarian law itself: violent

retaliations by both parties and escalation of the armed conflict without the restrictions that are inherent

to laws of armed conflict. The punishment of war crimes committed by state agents meet severe

difficulties, which leads to a stronger prosecution of armed opposition groups for similar breaches of

international criminal law.32 There are legio examples recorded by humanitarian/ organisations of state

agents who are treating their opponents, fighting for a non-state actor in a degrading, inhuman manner.33

Apart from the international criminal law, can human rights law fill out the gaps which are created by

the legal vacuum for armed non-state actors on armed conflicts?34 It is a question which I cannot research

in the scope of this paper, but Id just like to shortly review a few facts and opinions. Laws of armed

conflicts and human rights law share a common nucleus of non-derogable rights and have common

purpose of protecting human life and dignity. While human rights provide subjective rights for everyone,

human rights law mainly protects the individual against the state and as such it applies also in armed

conflicts. It is essentially made for asymmetric relations; however, it remains controversial to what

extent international human rights law applies for armed groups. Laws of armed conflicts are actually

considered as a lex specialis35 versus human rights law for any other situation, but when the lex specialis

does not apply because of the aforementioned historical and strategical reasons in armed conflicts with

armed non-state actors, it is unclear whether human rights law is adequate to cover the rights of citizens

and fighters in armed conflicts, especially with relation to the emergency exceptions included in the

European Convention on Human Rights.36 Human rights are not addressing to rebel groups, but rather

30 D. MURRAY, How International Humanitarian Law Treaties Bind Non-State Armed Groups, Journal of Conflict and Security Law, 2014, p. 2. 31 D. MURRAY, supra 30, p. 28. 32 K.J. HELLER, On a Differential Law of War, an Answer, 52 Harvard International Law Journal, 2011, 244. 33 The legally unexplainable situation of unlawful combatants by USA in Guantanomo prison during the conflict between USA and Al-Quaeda/ Taliban. 34 SASSLI M., supra n. 8, pp. 34-94. 35SASSLI M., supra 8, pp. 34-94. 36 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950. Entered into force 3 September 1953. Art. 15: Derogation in time of emergency 1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision. ().

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individuals, so they cannot fully replace the role of laws of armed conflicts in situations where these

laws dont apply due to the activities of non-state actors.

2.3. Bridging the gap between international humanitarian law and armed conflicts In legal doctrine, various attempts are made to answer the question how to fill the vacuum in the laws

of armed conflict with regard to the role of armed non-state actors, in order to assure that international

humanitarian laws dont become obsolete. It remains a conceptual problem that non-state armed groups

are supposed to comply with Treaties that they have not signed up to. Here below I wish to present the

most interesting and sensible solutions proposed or already partly implemented. They are ordered from

the least until the most far-reaching solutions to bridge the gap that is growing between practices and

legal principles. The leading purpose is to find future perspectives for a better compliance with

international humanitarian law.

2.3.1. Training fighters in general rules of laws of armed conflict and human rights law

The dissemination of rules of international humanitarian law is a major impulse to increase the respect,

especially among armed non-state actors. However, organisations that engage themselves in training

fighters in the general rules of armed conflict and international human rights law face problems with

states; there are reports of states who expulse organisations from their territory for so-called material

support to terrorists groups, which is in reality necessary advice and training in international

humanitarian law.

2.3.2. Informal access to treaties

Bugnion sees bilateral agreements on the application of treaties of humanitarian law to a situation of

armed conflict as a very powerful instrument to enhance the compliance with the provisions by both

parties.37 This can be considered as an application of the provision in paragraph 3 of common Article 3

common to the four Geneva Conventions: The parties to the conflict should endeavour to bring into

force, by means of special agreements, all or part of the other provisions of the present convention.

Because a bilateral agreement between a state party and non-state actor is not always feasible (States

are reluctant to agree upon rights to a non-state actor, fearing to give a legal status to the insurgents38),

a unilateral agreement could be valuable too. However, it must be taken into account that the non-state

actor uses the said compliance with certain provisions of humanitarian law as a mere tool for

propaganda.

2.3.3. Deed of commitment39

Geneva Call is an NGO based in Geneva that engages armed groups in respecting humanitarian norms.

They created a Deed of Commitment with provisions parallel to the Ottawa Convention outlawing

anti-personnel mines40 and similar Deed of Commitment for the protection of children from the effects

of armed conflict41 and for the prohibition of sexual violence in situations of armed conflict42 and

37 F. BUGNION, supra n. 26, p. 33. 38 Although common art. 3 to the four Geneva Conventions states this objection in paragraph 4: The application of the preceding provisions shall not affect the legal status of the Parties to the conflict. 39 Geneva Call, The Deed of Commitment, Directory of Armed Non-State Actor Humanitarian Commitments, available at: www.theirwords.org. Date of retrieval: 15/01/02. 40 Deed of Commitment for Geneva Call for Adherence to a Total Ban on Anti-Personnel Mines and for Cooperation in Mine Action launched in 2000; available at http://www.genevacall.org/wp-content/uploads/dlm_uploads/2013/12/DoC-Banning-anti-personnel-mines.pdf; date of retrieval in 15/01/03. 41 Deed of Commitment for Geneva Call for the Protection of Children from the Effects of Armed Conflict, launched in 2010; available at http://www.genevacall.org/wp-content/uploads/dlm_uploads/2013/12/DoC-Protecting-children-in-armed-conflict.pdf; date of retrieval: 15/01/03. 42 Deed of Commitment for Geneva Call for the Prohibition of Sexual Violence in Situations of Armed Conflict and towards the Elimination of Gender Discrimination, launched in 2012; available at http://www.genevacall.org/wp-

10

encourage non-state armed groups to sign such a commitment. Geneva Call has reported a decline in the

use of anti-personnel mines by signatories and emphasizes the role of example setting and peer pressure.

2.3.4. Belligerent status?

Although belligerency (a concept from ius ad bellum) is considered as an out-dated concept by some

authors, others see the recognition a non-state actor as belligerents as a tool to make the access to ius in

bellum-rules more easy and logical.43 The status of belligerent means that a certain measure of legal

status is provided for armed non-state actors; that is something which states now strongly object to. The

most used argument is that granting a legal status to armed non-state actors would upgrade terrorists to

a position on a par with states.44 And providing a legal status to non-state actors is a step in the direction

of legitimizing rebellion which state consider a direct assault on the sovereignty of states-. Next quote

from Heller designates once again the variety of problems that are interconnected. The problem for

rebels is not that the rules of IHL are too difficult for them to satisfy or too easy for the government to

satisfy; the problem is that even perfect compliance with IHL does not insulate them from domestic

prosecution. Truly incentivizing rebel groups to comply with IHL would thus require granting them

belligerent status, which would entitle them to the combatants privilege and POW treatment upon

capture. 45

2.3.5. Engaging armed groups in law-making

The main problem with international (humanitarian) law is that legislators (states) are at the same time

the main addressees; because of this legitimacy problem and the supra explained implementation

problems, the discussion raised between actors and scholars in the field of international law weather the

laws of armed conflicts itself should change, according to the new types of armed conflicts.46 It is

considered by Bassiouni ()unnecessary, unreasonable, and contrary to the humanitarian values

admittedly pursued not to have complete uniformity in the protective legal scheme applicable to any

violent processes, irrespective of the context's legal characterization.47

A number of authors radically call for new laws of armed conflicts, adapted to the current type of

conflicts, which give accordingly participation to non-state actors in the creation of these new rules. De

lege ferenda are a variety of measures to be faced: the very limited effect of provisions concerning non-

international armed conflicts should be widened. One of the most important rules should be the judicial

security of combatants on the non-state side; whereas now they dont enjoy a special protection, such a

measure as immunity for prosecution for participation in conflicts should be envisaged (in line with

combatant immunity in international armed conflicts), next to amnesty for armed insurrections and other

measures to protect insurgents from prosecution on a national level.48 And the prisoner-of-war status for

the fighters taken captive, similar to the protection which is provided in the Treaties for international

armed conflicts, should be part of a new framework of laws of armed conflict applicable to any type of

conflict.49

content/uploads/dlm_uploads/2013/12/DoC-Prohibiting-sexual-violence-and-gender-discrimination.pdf; date of retrieval: 15/01/03. 43 See for example: F. BUGNION, supra n. 26, p. 32. 44 A. ROBERTS & S. SIVAMUKARAN, Lawmaking by nonstate (sic) actors: engaging armed groups in the creation of international Humanitarian Law, 37 Yale Journal of International Law, 2012, p.133. 45 HELLER K.J., supra 32 p. 245. 46 M. SASSLI, supra n. 8, p. 49. 47 M.C. BASSIOUNI, The New Wars and the Crisis of Compliance with the Law of Armed Conflict by Non-State Actors, 98 Journal of Criminal Law and Criminology, 2008, p. 806. 48 F. BUGNION, supra 26, p. 38. 49 A. ROBERTS & S. SIVAMUKARAN, supra 44, p.140. The authors add that it is in the interest of the state not to recognize the prisoner-of-war-protection in non-international armed conflict because they cannot try the members of an armed group for taking part in the hostilities then.

11

Bugnion advocated a new legal regime as the most ideal answer to the current norm enforceability

gap regarding non-state actors in armed conflicts. But he is very much aware of the reluctance that states

show to confer law-making powers to non-state actors in situations where their own sovereignty is

challenged. 50

In order to legitimate the laws of armed conflicts towards armed groups, they should be engaged in law

creation, according to the opinion of an increasing number of scholars.51 First of all, this involvement in

the making of humanitarian law seems to be the most effective measure to increase the likelihood of

norm-compliance by armed opposition groups, through the effect of ownership of rules. There is an

evident link between concluding an agreement and complying with all the provisions in that agreement.

Ryngaert states that (). This consent and participation of armed groups fits in a bigger scheme where

non-state actors are an increasingly important player on the international field, whereas their

international legal personality is taken hostage by original subjects.52 Secondly, involvement of non-

state actors should also increase compliance among the states, according to the reciprocity principle.

The main point of resistance is again the self-interest of the states; they are very reluctant to confer any

hint of legal status upon non-state actors and consider the laws of armed conflicts as their creation. This

is the same reason why in Article 3 common to the four Geneva Convention and also in the Deed of

Commitment that Geneva Call uses to engage armed non-state actors, the provision is adopted that the

application of named Article of the Deed of Commitment shall not affect the legal status of the non-

state actor53; this clause is included in order not to meet resistance at the side of the states. He refers to

the striking difference between international and non-international armed conflicts, which is in particular

beyond the pale because since decennia, armed non-state actors are the main opponents of states in

armed conflicts. He finds it only logical and totally necessary to extend combatant status to all fighters

in an armed conflict.

How to organize the widening of laws of armed conflict to non-state actors? Which actors should be

included in this process of law-making? It needs no arguments to state that a totally inclusive approach,

where even the most outlawed groups are invited to create laws of armed conflicts, remains too

controversial. Most authors plead for an extraction of the conventional treaties to certain armed non-

state actors, under balanced conditions. A paramount condition is that the broadening at the creation of

humanitarian law may not lead to a downgrading of humanitarian law protections.

I will not continue the debate about the structure and organisation of an engagement of non-state actors

with law-making in the scope of this paper but Id like to highlight one specific consideration: will

common but differentiated responsibilities(CDR) 54 work in the new humanitarian law, i.e. the

humanitarian law for new conflicts with the involvement of non-state actors? For stronger parties, it

is more easy to comply with LOAC. As before is explained, the new conflicts that involve non-state

actors are essentially asymmetric conflicts. When we assume the former disposition, it seems illogical

to impose similar obligations to a non-state actor without relevant resources as to a non-state actor who

exercises real control over a significant territory of the state that they are in conflict with.55

50 F. BUGNION, supra n. 26 p. 31. 51 Bugnion, Roberts & Sjvakumaran, and Ryngaert. 52 RYNGAERT, C. and NOORTMANN, M. (eds.), Human security and international law: the challenge of non-state actors, Portland, Cambridge, 2014, p. 203 53 Geneva Call for Adherence to a Total Ban on Anti-Personnel Mines and for Cooperation in Mine Action launched in 2000; available at http://www.genevacall.org/wp-content/uploads/dlm_uploads/2013/12/DoC-Banning-anti-personnel-mines.pdf. Date of retrieval: 15/01/03. Article 6: This Deed of Commitment shall not affect our legal status, pursuant to the relevant clause in common article 3 of the Geneva Conventions of August 12, 1949. 54 CDRs: Common but Differentiated Responsibilities zie G.BLUM, On a Differential Law of War, 52 Harvard International Law Journal, 2011, pp. 166-168. 55 A. ROBERTS & S. SIVAMUKARAN, supra n. 44, p.140. as an example of differentiation in application of laws of armed conflict, the authors give the prohibition on sentencing and execution prior to a fair trial by a constituted court; obviously

12

Smaller scale armed groups in an armed conflict have little interest in complying with international

humanitarian law, because the rules of IHL do not directly benefit them; they do not possess combatants

privilege and are not entitled to be treated as prisoners of war (POWs) upon capture. The CDR might

act as an incentive for rebel groups e.g. to comply with humanitarian law, if the bar for compliance with

the same laws for state parties is put higher.

We argue for striking between recognizing the interests of armed groups in creating and developing

international humanitarian law and maintaining important humanitarian protections. In this line

Roberts and Sivamukaran accurately describe the direction in which the new humanitarian law should

evolve. As the most ideal scenario, they favour unilateral declarations by armed groups intending to

respect (parts of) humanitarian law, next to hybrid treaties (bilateral or trilateral) or multilateral treaties

and possibly the creation of quasi-custom (cfr. infra).56

Sassoli is stating clearly that he does not agree with the need for involvement of non-state actors in the

creation of new humanitarian law, and shows in his article how to apply existing humanitarian law and

human rights law to allegedly new conflicts.

2.3.1. Re-evaluation of codes of conducts as quasi-custom

Can practice of non-state parties create customary law? This question has been answered positively by

Roberts and Sivakumaran; they consider the codes of conduct, internal orders, drafted constitutions

etc by non-state actors as a possible source of quasi-custom. In order to make this acceptable to state

parties, they acknowledge that these practices should not necessary be treated equally as existing

customary law derived from state practice; there is also need for consensus between armed groups and

states about the content of the quasi custom; they should not be given the power to change or undermine

existing custom and the binding force of existing custom should be respected by armed groups.57

Ryngaerts opinion on this proposal (proposition) for creation of quasi-custom in order to promote the

participatory governance and the binding character of customary (and other) humanitarian law is that it

might end up in regression, though the decision-making structures are more progressive.58 Ryngaert and

authors such as Sivamukaran & Roberts favour this risk above the current status quo which only

affirmates the historical supremacy of states in the laws of armed conflict but stand far from the

humanitarian purpose of protecting fighters, civilians and other parties in the inevitability of an armed

conflict.

cannot all parties suffice to this requirement an armed non-state actor which just meets the minimum requirements of organization and is in an armed conflict with a state will not have the same standard of tribunal and law as a well organized non-state actor with territorial control acting as a quasi-government. 56 A. ROBERTS & S. SIVAMUKARAN, supra n. 44, p.141-148. 57 A. ROBERTS & S. SIVAMUKARAN, supra n.44, p.149-151. Author recognize the difficulties this suggestion will meet with regard to acceptance by states and implementation. 58 C. RYNGAERT, supra 21.p. 290.

13

3. Conclusion

I can conclude the present short research into the position of armed non-state actors in laws of armed

conflict with some recommendations and thoughts about further developments. The omnipresence of

non-state actors in the reality of current armed conflicts poses the international humanitarian law for a

serious challenge. Armed opposition groups are considered as a legal anomaly in existing body of

humanitarian law, which mirrors the resistance among states against the very existence of opposition

groups and their wish to preserve hegemony in the field of laws of armed conflict.59

If this field of international law wants to remain relevant and be legitimate, there is increased

involvement of armed groups needed, according to different leading scholarly opinions. The aim is to

enhance the compliance with laws of armed conflict, to keep the standards for humanitarian protection

high. An ad hoc-approach is deemed to be the most realistic and proper way to arrive in the anticipated

re-birth of humanitarian law; it is idealistic and not realistic to wish for an abandoning of state supremacy

qua legal status, involvement in law-making and content of law for non-international armed conflicts,

but the hard edges of state centrality in the humanitarian domain should be softened in favour of a more

humanitarian conduct of armed conflicts of today.

59 Z. DABON, International law: armed groups in a state-centric system, 93 International Review of the Red Cross, p. 424.

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