Canadian Consortium on Human Security

Marco Sassòli *

In a decreasingly state-centric international order, international law is still created by states for states. Those provisions of international humanitarian law (IHL) that are intended to regulate armed conflicts that are not fought between states but rather, either within a state or between a state and an armed non-state actor abroad (referred to as ‘non-international armed conflicts’ in IHL), have, since 1949, been legally progressive by specifically addressing one category of non-state actors – armed groups. Article 3 of the 1949 Geneva Conventions states that in such a situation, ‘each Party to the conflict shall be bound to apply [certain provisions]’ (emphasis added). This makes it absolutely clear that both sides are bound by these rules.

Beyond Article 3, the traditional principle of equality of the belligerents involved in an armed conflict, granted by IHL implies that all the rules of IHL applicable to non-international armed conflicts are equally binding on armed groups. A recent comprehensive study carried out under the auspices of the International Committee of the Red Cross (ICRC) found that there is a large body of customary rules, the majority of which purportedly apply to both international and non-international (including intrastate) armed conflicts. It is open to debate whether it is realistic to expect armed groups involved in armed conflicts to respect these very detailed and far-reaching obligations. Moreover, these obligations were articulated based on the practice of states (mainly in the form of official declarations and statements) and not that of armed groups. These and other rules of IHL might need to be ‘translated’ so that we can realistically expect armed groups to comply with them.

The mechanisms for the implementation of IHL in non-international armed conflicts remain very limited. Some IHL treaties (other than the Geneva Conventions) such as the Ottawa Convention banning landmines are still only addressed to state actors. This is precisely one of the reasons why Geneva Call, an NGO working to engage non-state armed groups so that they refrain from using landmines, is attempting to convince such groups to sign a Deed of Commitment. Such implementation efforts directed at armed groups must be strengthened in several respects.

First, the obligations articulated under IHL should be disseminated to those bodies that are responsible for upholding and applying them. The training of armed groups in the legal expectations outlined in IHL should take into account the unique circumstances of armed groups themselves. Far from receiving several months of basic training in IHL like members of regular armed forces, members of armed groups are often immediately sent into theatres of action.

Getting a commitment from an armed group is an important step as it places the onus on the members and leaders who undertook the commitment to become advocates of IHL within the armed group. With this in mind, it is more beneficial to negotiate a code of conduct with the armed group than to obtain a declaration that it will comply with the 500 articles of ‘the Geneva Conventions and Additional Protocols’.

Armed groups could even be provided with advisory services. The ICRC has a specific unit within its legal division which advises states on implementing international humanitarian law at the national level. It is necessary that such advice be available to armed groups as well. Obviously, armed groups – which are normally clandestine and illegal – are not confronted with the same challenges as states in implementing IHL. Many human rights lawyers would be reluctant to see them ‘legislating’ or conducting a ‘fair trial’ as only a state can legislate or establish a regular tribunal. However, it remains unclear how armed groups can obtain compliance from their members, punish those who do not comply or require certain conduct from those who are under their de facto control if not by applying general and abstract regulations.

Respect of IHL must also be rewarded. In an international armed conflict, a combatant who complies with IHL and only kills enemy soldiers on the battlefield is classified as a prisoner of war if he falls into enemy hands. He cannot be punished for having killed enemy soldiers. If he commits war crimes, however, he must be punished. He therefore has a definite interest in complying with IHL. Such a reward for compliance does not exist for non-international armed conflicts. A citizen who is, for example, involved in an intrastate armed conflict against the government will be prosecuted for treason and murder once captured by government forces even if he kills only soldiers and complies with IHL. Although this fundamental difference between international and non-international armed conflicts cannot be fully overcome within the Westphalian system, it nevertheless becomes important to develop incentives so that combatants comply with IHL. This is one of the major reasons why acts that are committed in an armed conflict and are not prohibited under IHL should never fall under any definition of terrorism.

Respect for the law should also be monitored. Under Article 3 of the Geneva Conventions, the ICRC may offer its services to armed groups. If the armed group accepts, the ICRC may monitor the group’s respect in exactly the same way that it monitors state parties involved in international armed conflicts. Similarly, when Geneva Call obtains a Deed of Commitment, a monitoring process, looking at whether the commitment corresponds to actions in the field, begins.

As for punishing violations, international criminal law is as applicable to those fighting for armed groups as to those fighting for states. Armed groups are responsible for violations committed by their members. Their responsibility to the international community has already been demonstrated by sanctions imposed on them by the Security Council. Understanding how humanitarian organizations react and how they should react to violations of IHL by armed groups is another area deserving of exploration.

There are two main objections to attempting to engage all non-state armed groups. First, some argue that engaging armed groups encourages them to continue fighting. While a world without armed groups would be a better world, they are as real as armed conflicts. Armed groups will not disappear if we ignore them – just as armed conflicts would not disappear if there was no body of IHL.

Others believe that engaging some but not all armed groups is the way forward. However, it is important to engage all armed groups that are parties to genuine armed conflicts, a concept that is admittedly not very clearly defined in IHL. Beyond the need to clarify what an armed conflict is, it is difficult to articulate a universally acceptable distinction between ‘good’ and ‘bad’ armed groups. An armed group’s willingness to comply with legal restraints will be revealed by the result of the process and therefore cannot be a precondition to the process.

From a humanitarian point of view, such distinctions would mean that those in need of the greatest protection would be deprived of efforts aimed at their protection. In addition to this there is a diplomatic problem – If we refuse, for example, to engage Hezbollah in Lebanon or the Taliban in Afghanistan, how can we justify engaging the LTTE to the Government of Sri Lanka or engaging the FARC to the Government of Colombia? These governments would never accept that their opponents are ‘better’, more ‘serious’, or more willing to comply with rules than other armed groups. Therefore, the only way forward is to try to engage all armed groups and to develop mechanisms for the real world in which armed conflicts are fought by armed groups as much as they are by governments. This is the new frontier of IHL. If the law does not develop on this frontier, it will become slowly, but increasingly, irrelevant.

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