Armed Non-State Actors in International Humanitarian Law The Need for a Definition of Legal Adaptation
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Abstract
Today, non-international armed conflicts involving the participation of Armed Non-State Actors (ANSAs) are of remarkable significance, especially when compared to inter-state armed conflicts.[1] Yet, despite the significant role ANSAs play in modern-day conflicts, they constitute an ‘anomaly’ in the current State-centric international legal system.[2]
ANSAs’ degree of dispersion, influence, and effect on international politics challenge the Westphalian notion of sovereignty and Max Weber’s definition of State as an entity that successfully ‘claims the monopoly over the legitimate use of force within a given territory’.[3] Thus, ANSAs demand the establishment of strategies for interacting with them as well as to consider the possibility to ‘adapt’ international law, especially International Humanitarian Law (IHL), in light of their role.[4]
To identify the main shortfalls of the relevant IHL norms, particularly the 1949 Geneva Conventions and their Additional Protocols, firstly its necessary to establish a clear and consistent definition of ANSAs, which is still lacking both in law and in theory. Secondly, it is also fundamental to consider International Human Rights Law since it does not apply in situations of internal strife or disturbance, where ANSAs also pose serious threats.[5]
Starting with the Syrian armed conflict, this paper aims to put forward innovative solutions, such as the “backchannel diplomacy”, to foster States and ANSAs’ collaboration. Within the scope of the study, some recommendations are proposed. For instance, the establishment of a working table with the participation of States, international and regional organizations, and civil society, with the task to adapt IHL mindful of ANSAs’ role. Lastly, there is an attempt to find effective tools to ensure that ANSAs comply with IHL.
[1] Halvard Buhaug, Scott Gates, Havard Hegre and Havard Strand, ‘Global Trends in Armed Conflict’ (2007), Centre for the Study of Civil War, PRIO https://www.hbuhaug.com/wp-content/uploads/2014/02/Global-Trends_final.pdf
[2] Zakaria Daboné, ‘International law: armed groups in a state-centric system’ (2011), 93(882) International Review of the Red Cross https://international-review.icrc.org/sites/default/files/irrc-882-dabone.pdf DOI <10.1017/S1816383112000057> accessed 8 February 2022
[3] Karl Dusza, ‘Max Weber’s Conception of the State’ (1989) 3(1), International Journal of Politics, Culture, and Society http://www.jstor.org/stable/20006938 accessed 14 February 2022
[4] Werner Menski, ‘Comparative Law in a Global Context’ (2006) Cambridge http://www.cambridge.org/9780521858595 accessed 7 February 2022
[5] Global Justice Center Blog, ‘How can international humanitarian law bind non-state actors?’ July 10, 2012, https://globaljusticecenter.net/blog/441-how-can-international-humanitarian-law-bind-non-state-actors accessed 3 February 2022
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References
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Ibid.
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See e.g., Jason Farr, ‘Point: The Westphalia Legacy and The Modern Nation-State’ (2005) 80(3/4) International Social Science Review 156-159 http://www.jstor.org/stable/41887235; Andreas Osiander, ‘Sovereignty, International Relations, and the Westphalian Myth’ (2001) 55(2) International Organization 251-287 https://library.fes.de/libalt/journals/swetsfulltext/10676369.pdf .
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Ibid.
Strazzari Francesco, ‘The Decade Horribilis: Organized Violence and Organized Crime along the Balkan Peripheries’ 1991–2001’ (2007) 12(2) Mediterranean Politics 185-209 DOI <10.1080/13629390701388661>.
Sulce Marija, ‘The Syrian armed conflict: nearing the end?’ (2018) The War Report 2018 of Geneva Academy 1-8.
Ibid.
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‘The Map ISIS Hates’ The New York Review (25 June 2014) https://www.nybooks.com/daily/2014/06/25/map-isis-hates/ accessed 30 July 2022.
Matthew Levitt, ‘Hezbollah’s Regional Activities in Support of Iran’s Proxy Networks’ (2021) The Middle East Institute https://www.mei.edu/sites/default/files/2021-07/Hezbollah%E2%80%99s%20Regional%20Activities%20in%20Support%20of%20Iran%E2%80%99s%20Proxy%20Networks_0.pdf accessed 4 May 2022.
Inter alia People’s Protection Unit, Women’s Protection Unit, Syrian Democratic Forces, Kurdistan Workers’ Party.
Valensi Carmit, ‘Alliances with Violent Non-State Actors in Middle East Conflicts: Between Theory and Practice’ (2021) Institut Européen de la Mediterranée 239-242 https://www.iemed.org/wp-content/uploads/2021/11/Violent-Non-State-Actors-Middle-East-Alliances-Conflicts_MedYearbok2021.pdf accessed 23 March 2022.
See e.g., ‘Lessons from the Syrian State’s Return to the South’ International Crisis Group (25 February 2019) https://www.crisisgroup.org/middle-east-north-africa/eastern-mediterranean/syria/196-lessons-syrian-states-return-south; ‘If We Have to Choose Between Compromise and Genocide, We Will Choose Our People’ Foreign Policy (13 October 2019) https://foreignpolicy.com/2019/10/13/kurds-assad-syria-russia-putin-turkey-genocide/.
See e.g., Williams Phil, ’Violent Non-State Actors’ (2008) International Relations and Security Network https://www.files.ethz.ch/isn/93880/vnsas.pdf; John Sullivan, ‘From Drug Wars to Criminal Insurgency: Mexican Cartels, Criminal Enclaves and Criminal Insurgency in Mexico and Central America. Implications for Global Security’ (2011) Hal Open Science https://halshs.archives-ouvertes.fr/halshs-00694083/document .
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Cf Valensi (n 24).
Esposito Leopoldo, ‘The importance of Non State Actors nowadays’ (2017) filodiritto https://www.filodiritto.com/importance-non-state-actors-nowadays accessed 18 February 2022.
See e.g., Banu Baybars Hawks, ‘Non-State Actors in Conflicts: Conspiracies, Myths, and Practices’ (2018) Cambridge Scholars Publishing 4 https://www.cambridgescholars.com/resources/pdfs/978-1-5275-0411-0-sample.pdf; Stefanie Herr, ‘Binding Non-State Armed Groups to International Humanitarian Law Geneva Call and the Ban of Anti-personnel mines: Lessons from Sudan’ (2010) Peace Research Institute Frankfurt 27-28 https://www.hsfk.de/fileadmin/HSFK/hsfk_downloads/prif95.pdf.pdf .
The most illustrative case of this statement can be found in European (but especially Italian) relations with Yasser Arafat of the Palestine Liberation Organisation (PLO). In the first half of the 1980s, numerous European leaders attempted to break every hesitation concerning the unity of the front in order to expel the most violent and extremist fringes. This sine qua non was essential to start a serious political dialogue aimed at negotiating with Israel and at the same time justify the political dialogue with the PLO to the electoral body in Europe. In fact, in Italy, the situation created a major scandal because Arafat was treated as a head of state, whereas he was only a representative of a non-state armed group that often resorted to armed struggle, moreover against an allied state, i.e. Israel. For Tel Aviv there was a full openness to the association of the Palestinians in the negotiation process, but an equally clear refusal to consider the PLO as an interlocutor as they continued to use terrorist methods. See e.g., Francesco Lefebvre D’Ovidio and Luca Micheletta, ‘Giulio Andreotti e l’Europa’ (2017) (80) Storia e Letteratura 1-329 56 58 60; Luigi Vittorio Ferraris, ‘Manuale della politica estera italiana 1947-1993’ (1998) Laterza 391.
See para. 4460: “The Protocol applies on the one hand in a situation where the armed forces of the government confront dissident armed forces, i.e., where there is a rebellion by part of the government army or where the government’s armed forces fight against insurgents who are organized in armed groups, which is more often the case. This criterion illustrates the collective character of the confrontation; it can hardly consist of isolated individuals without co-ordination”.
Jan Engberg, Anne Lise Kjaer, ‘Approaches to Language and the Law’, (2011) 46 Research Gate 7 7-10 DOI <10.7146/hjlcb.v24i46.97359> https://www.researchgate.net/publication/292496311_Approaches_to_Language_and_the_Law_-_Some_Introductory_Notes accessed 31 July 2022. See e.g.: Peter Goodrich Peter, ‘The Role of Linguistics in Legal Analysis’ (1984) 47(5) The Modern Law Review 523-534 http://www.jstor.org/stable/1096317.
Max Weber, ‘Weber: Political Writings’ (1994) Cambridge University Press 339.
Ibid 311.
Cf Williams (n 14) 4.
Randall Schweller, ‘Maxwell's Demon and the Golden Apple: Global Discord in the New Millennium’ (2014) Johns Hopkins Univ Pr 55 1-196.
Farr Jason, ‘Point: The Westphalia Legacy and the Modern Nation-State’ (2005) 80 (3/4) International Social Science Review 156 156-159.
Cf Williams (n 14).
Scuccimarra Luca, ‘Proteggere l’Umanità. Sovranità e Diritti Umani dell’Epoca Globale’ (2016) il Mulino.
Aubert Alberto and Simoncelli Paolo, ‘Storia moderna. Dalla formazione degli Stati nazionali alle egemonie internazionali’ (2012) Cacucci.
Marchisio Sergio, ‘Corso di Diritto Internazionale’ (2013) 4 Giappichelli.
Oshiba Ryo, ‘A Re-examination of Actors in International Relations’ (1998) 1998(119) International Relations 1-10.
Kan Hideki, ‘actors in world politics’ (1999) 2 Government and Politics 1-18 3.
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The Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A, 2 October 1995, para. 70 ICTY.
Bouchet-Saulnier Françoise, ‘The practical guide to humanitarian law’ (2013) Rowman & Littlefield Publishers 440.
Limaj et al. Case, ICTY, IT-03-66-T, November 30 2005, para. 89.
Cf Bouchet-Saulnier (n 47).
Haradinaj et al. Case, ICTY, IT-04-84, April 3 2008, para. 60.
Cf Bouchet-Saulnier (n 47). the source cites additional requirements found by the court in “Haradinaj et al. Case, ICTY, IT-04-84, April 3 2008, para. 60”. The list as provided by this contribution is not exhaustive because it is not of direct research interest, see below for the rest of the characteristics:
The ability of the group to gain access to weapons, other military equipment, recruits and military training;
Its ability to plan, coordinate and carry out military operations, including troop movements and logistics;
Its ability to define a unified military strategy and use military tactics and;
Its ability to speak with one voice and negotiate and conclude agreements such as cease-fire or peace accords.
See e.g., Annyssa Bellal and Ezequiel Heffes, ‘‘Yes, I Do’: Binding Armed Non-State Actors to IHL and Human Rights Norms through Their Consent’ (2018) 12(1) Human Rights & International Legal Discourse 120-136 https://www.geneva-academy.ch/joomlatools-files/docman-files/Bellal_Heffes_HRLD.pdf .
Cf Bouchet-Saulnier (n 47) 441.
Ibid.
Marco Sassòli, ‘L’administration d’un territoire par un groupe armé, peut-elle être régie par le droit?’ (2019) Geneva 269.
Introductory Note of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.
Cf Bouchet-Saulnier (n 47) 439.
Medecins Sans Frontieres, ‘The Practical Guide to Humanitarian Law’ (under the heading “Special Agreement”) (2013) <https://guide-humanitarian-law.org/content/article/3/special-agreement/> accessed 9 September 2022.
This form of diplomacy sometimes diverges in manners, taking on different names. Generally, the most frequent term is “second track diplomacy” and first appeared in an article published in Foreign Policy magazine by Joseph V. Montville only in 1981, testifying to its innovativeness. McDonald ideally argues that there are instead five tracks to parallel diplomacy and speaks of “multitrack diplomacy”. Nevertheless, one can trace the birth of this form of diplomacy to the end of World War II with the aim of dampening the climate of mutual scepticism that persisted in the Old Continent due to the conflict. In 1946, a process of parallel diplomacy was initiated within the framework of the Caux-sur-Montreux meetings in Switzerland. Over a period of five years, more than 3,000 Germans and almost 2,000 Frenchmen took part in forums whose aim was to “rebuild war-torn Europe” by working on individual change, i.e. in this case recognition and forgiveness from the past. Participants came from different sectors of society: politicians, trade unionists, industrialists, professors, with, in smaller numbers, a few journalists and some clergymen. The creation on this occasion of strong bonds of trust between German and French personalities made it possible to remove obstacles between the two countries and helped to make the Schuman Declaration possible.
See e.g., McDonald John, ‘Further Exploration of Track Two Diplomacy’ (1991) Timing the De-Escalation of International Conflicts 201-220; Montville Joseph, ‘Track Two Diplomacy: The Work of Healing History’ (2006) The Whitehead Journal of Diplomacy and International Relations 20; McDonald John and Bendahmane Diane and Center for the Study of Foreign Affairs (U.S.), ’Conflict resolution: track two diplomacy’ (1987) Washington D.C: Foreign Service Institute U.S. Dept. of State 1.
Montville Joseph, ‘Track Two Diplomacy: The Work of Healing History’ (2009) 7(2) The Whitehead Journal of Diplomacy and International Relations 19-20.
De Lauri Antonio, ‘The humanitarian diplomacy of International Committee of Red Cross’ (2021) 3 CMI BRIEF https://www.cmi.no/publications/7746-la-diplomazia-umanitaria accessed 13 April 2022.
Churchill Ewumbue-Monono, ‘Respect for international humanitarian law by armed non-state actors in Africa’ (2006) 88(864) International Review of the Red Cross 905-924 https://www.icrc.org/en/doc/assets/files/other/irrc_864_ewumbue-monono.pdf accessed 17 February 2022.
“Deeds of Commitment” are standardized documents on various armed conflict-related issues prepared by the NGO Geneva Call and signed by various armed non-state actors to increase these groups’ respect for IHL. The Deeds are unilateral declarations by the armed groups whereby they commit to renounce certain means and methods of warfare or accept certain positive obligations mirrored in IHL. Geneva Call, which engages with armed groups to help them establish self-regulation mechanisms, also reserves the right to publish its findings regarding the respect or lack thereof by its interlocutors.
Cf Ewumbue-Monono (n 63).
Geneva Call, ‘Annual Report 2013: Protecting Civilians in Armed Conflict’ (2014) 8 <https://www.genevacall.org/wp-content/uploads/dlm_uploads/2014/06/Annual-Report-2013-web.pdf> accessed 9 September 2022.
To date there are more than a thousand of Deed of Commitment proposed by Geneva Call and signed by armed non state actors in all the continents. They concern different thematic: children in armed conflict; civilians; conduct of hostilities; displaced persons; emblem; fundamental guarantees; general principles of international law; Geneva Conventions of 1949; protection of health care; human rights; humanitarian assistance; humanitarian mine action; implementation; international humanitarian law; landmines; persons hors de combat; prisoner of war; protected persons; protected persons and objects; protected zones; right to education; rules on recruitment; sexual crimes; sexual violence; weapons; women. An example of a Deed of Commitment under Geneva Call for the Protection of Children from the Effects of Armed Conflict is available here: https://www.genevacall.org/wp-content/uploads/dlm_uploads/2013/12/DoC-Protecting-children-in-armed-conflict.pdf .
Geneva Call, ‘Their Words: Directory of Armed Non-State Actor Humanitarian Commitments’ <http://theirwords.org/pages/home> accessed 9 September 2022.
Ibid.
In the Syrian case, States such as Kuwait, Qatar and Saudi Arabia, which share divergent interpretations of Sunni Islam, have become the guarantors against Shia-affiliated ANSAs, such as Hezbollah and Iran, which instead support the Syrian regime. Thus, the externalisation of these religious differences among the member states of the Gulf Cooperation Council, in particular Qatar and Saudi Arabia, led to a breeding ground for the Muslim Brotherhood and other Islamic extremist groups in Syria, whose rift led to the proclamation of the Islamic State in the second half of 2014. The involvement of the Arab League in this case is therefore of utmost importance in order to reach an agreement given the existing regional interests.
Cf Bouchet-Saulnier (n 47).
National liberation movements enjoy a special status at the UN as exponential bodies of peoples aspiring to self-determination. Resolution 3280 (29) of 10 December 1974 granted observer status to all those recognised by the African Union (AU), while Resolution 35/167 of 15 December 1980 recognised that granting observer status to national liberation movements in the organisations of the UN system constitutes a contribution to international peace and cooperation. In this way, a form of institutional legitimisation of the movement is realised, so that the right to self-determination can also be exercised through participation in the work of the UN.
The Battle of Solferino was fought on 24 June 1859 in the context of the Second Italian War of Independence. Henry Dunant, who was there on business, was shocked by the cruelty of this conflict and decided to help the war wounded with local women without making any distinction between the various sides. This battle led Dunant to create the International Committee of the Red Cross with the same principles that had motivated him to serve the war wounded. This international principle based on neutrality and impartiality was among the pillars of the organisation that years later led to the Geneva Conventions.
ICRC, ‘Solferino and the International Committee of the Red Cross’ (2010) <https://www.icrc.org/en/doc/resources/documents/feature/2010/solferino-feature-240609.htm> accessed 9 September 2022.