Abstract
With most contemporary armed conflicts being of a non-international nature, non-State armed groups (NSAGs) play a prominent role in the factual reality regulated by international humanitarian law (IHL). While it is widely recognised that NSAGs have obligations under IHL applicable in non-international armed conflicts (NIACs), their role in the creation of this body of law remains highly controversial. Accepting that the capacity of NSAGs to contribute to the development of IHL rests on the consent of States, the authors demonstrate that NSAGs have thus far only been granted limited capacity to do so. Yet, there are feasible avenues for increasing the participation of NSAGs in the creation of IHL rules applicable in NIACs, which might contribute to enhanced compliance with IHL by NSAGs and lead to a more realistic and conceptually coherent legal regime. In addition, NSAGs can and do play an important role in the interpretation of IHL rules applicable in NIACs. The process of interpretation provides an opportunity for NSAGs to influence the legal content of these rules without directly challenging the primacy of States as international law-makers.
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Notes
- 1.
Because this chapter limits itself to the role of NSAGs in the development and interpretation of IHL, the term “NSAG” as used in this chapter is confined to armed groups that are a party to a NIAC. It only analyses the role of those armed groups that are sufficiently organised to be party to a NIAC, in the sense of Article 3 common to the Geneva Conventions and customary IHL, and that are involved in armed confrontations of a certain intensity. See ICTY, Appeals Chamber, The Prosecutor v Duško Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, Case no. IT-94-1-AR72 (Tadić), para 70. See further ICTY, Trial Chamber II, The Prosecutor v Boškoski and Tarčulovski, Judgment, 10 July 2008, Case no. IT-04-82-T, paras 199–203 for an account on factors that indicate sufficient organisation. For Additional Protocol II (AP II) to be applicable a higher level of organisation is required, i.e. the NSAG must control territory pursuant to Article 1(1) AP II. For an overview of factors to be taken into account to assess the intensity of a NIAC, see ibid., paras 177–193.
- 2.
Henckaerts and Doswald-Beck 2005.
- 3.
For the acceptance that NSAGs are bound by IHL of NIACs, see, e.g., Sassòli 2010, pp 10–13; Zegveld 2002, p 10 referring to “wide international practice confirm[ing]” this for Common Article 3 and AP II. See also SCSL, Appeals Chamber, Prosecutor against Morris Kallon and Brima Bazzy Kamara, Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004, Case no. SCSL-2004-15-AR72(E) and SCSL-2004-16-AR72(E) (Kalon and Kamara), para 45; Henckaerts and Doswald-Beck 2005, p 495 (Rule 139). However, the legal basis of the obligations they incur remains unclear. See Sassòli 2010, pp 13–14; Kleffner 2011; Sivakumaran 2006; Murray 2015 for a discussion on several explanations for how the binding force of IHL on NSAGs can be construed.
- 4.
- 5.
ICJ, Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 11 April 1949, [1949] ICJ Rep 174, p 179.
- 6.
Ibid., p 178. In line with this, see Lauterpacht 1950, pp 20, 12. Lauterpacht wrote:
an international public body - such as the United Nations - may possess or acquire international personality by virtue of facts other than formal attribution of such capacity. Such a result may be brought about by the fact of that body being entrusted with or exercising functions compatible with or implying international personality (emphasis added).
Accordingly, he wrote:
in each particular case the question of whether a person or body is a subject of international law must be answered in a pragmatic manner by reference to actual experience and the reason of the law as distinguished from a preconceived notion as to who can be subject of international law.
- 7.
- 8.
See Roberts and Sivakumaran 2012, p 125.
- 9.
See, generally, Roberts and Sivakumaran 2012, pp 132–141 for a more extensive analysis of the three objections discussed in this section.
- 10.
See, e.g., PCIJ, Case of the S.S. Wimbledon (United Kingdom, France, Italy & Japan v Germany), Judgment, 17 August 1923, P.C.I.J. Reports (Ser. A, No. 1), para 35.
- 11.
Roberts and Sivakumaran 2012, pp 116–118. Roberts and Sivakumaran define “State-empowered bodies” as “international bodies created by two or more States and granted authority to make decisions or take actions, such as developing, interpreting, applying, and enforcing international law”, p 116.
- 12.
See also, e.g., Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (and Protocols) (as amended on 21 December 2001), opened for signature 10 April 1981, 1342 UNTS 137 (entered into force 2 December 1983) (CCW), Article 1(6).
- 13.
ICRC 2016, p 289, para 860. The “Deeds of Commitment” designed by Geneva Call that NSAGs can sign to commit to respect certain humanitarian norms also include such a provision. See, e.g., Geneva Call 2013, which states: “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.”
- 14.
- 15.
See Sect. 1.2.2.
- 16.
See Roberts and Sivakumaran 2012, p 138.
- 17.
Clapham 2010, p 43.
- 18.
For example, Geneva Call’s Deed of Commitment relating to anti-personnel mines goes beyond the terms of the Antipersonnel Mine Ban Convention of 1997. See also Roberts and Sivakumaran 2012, pp 138–139.
- 19.
- 20.
See ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, 20 February 1969, [1969] ICJ Rep 3, para 77.
- 21.
See, also for a discussion on how this might equally increase the compliance of States in conflict with NSAGs, Roberts and Sivakumaran 2012, pp 126–132.
- 22.
- 23.
Although a comprehensive study on whether involvement in law-making correlates with enhanced compliance has yet to be undertaken, there is some evidence suggesting a link between allowing NSAGs a role in the creation of IHL and their increased acceptance and compliance with that law. See Roberts and Sivakumaran 2012, pp 126–132, 141.
- 24.
- 25.
- 26.
Sassòli 2010, p 15.
- 27.
Ibid., p 21.
- 28.
See Crawford 2012, p 20.
- 29.
Oppenheim 1920, p 1.
- 30.
Roberts and Sivakumaran 2012, p 112.
- 31.
Villiger 1997, p 41.
- 32.
See Roberts and Sivakumaran 2012, pp 121–123.
- 33.
PCIJ, The Case of the S.S. Lotus (France v Turkey), Judgment, 7 September 1927, P.C.I.J. Reports (Ser. A, No. 10), para 44.
- 34.
See Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) (VCLT), Articles 34–35.
- 35.
- 36.
See Arend 1999, pp 43–45; Roberts and Sivakumaran 2012, p 120. Roberts and Sivakumaran 2012, pp 118–125 analyse two more approaches that justify participation of non-State actors, including NSAGs, in international law-making. The first is based on the State-like features of certain non-State entities. The second posits that non-State actors whose voices are not represented by States should participate in the law-making process. On this later argument, see also Klabbers 2003, p 359.
- 37.
Roberts and Sivakumaran 2012, p 120.
- 38.
Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, opened for signature 21 March 1986, UN Doc. A/CONF.129/15 (not yet entered into force).
- 39.
Roberts and Sivakumaran 2012, pp 146–149.
- 40.
Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts 1977b, para 3. Note, however, that States included a reservation in the Final Act of the Diplomatic Conference stipulating that “[i]t is understood that the signature by these movements is without prejudice to the positions of participating States on the question of precedent.”.
- 41.
Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts 1977a, para 3.
- 42.
Roberts and Sivakumaran 2012, p 148.
- 43.
Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts 1977b, para 1.
- 44.
- 45.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, opened for signature 12 December 1977, 1125 UNTS 3 (entered into force 7 December 1979) (AP I).
- 46.
See also, CCW, above n 12, Article 7(4).
- 47.
The depository can only accept the unilateral declaration of a national liberation movement if the State against which the national liberation movement is fighting is a Party to Additional Protocol I. The Polisario Front is the only movement that has submitted a unilateral declaration to the Swiss Federal Council that the latter could accept. The declaration was deposited 23 June 2015 and has the effects mentioned in Article 96(3) of the Additional Protocol since that date. Federal Department of Foreign Affairs FDFA 2015.
- 48.
Roberts and Sivakumaran 2012, pp 147–148.
- 49.
Declaration by Signatories to the “Deed of Commitment under Geneva Call for Adherence to a Total Ban on Anti-Personnel Mines and for Cooperation in Mine Action” to the Cartagena Summit on a Mine-Free World, 30 November to 4 December 2009, Geneva, 19 June 2009. http://theirwords.org/media/transfer/doc/1_md_2009_02-ba38c4b7e136bcfd5dd5e08f61e81567.pdf. Accessed 3 April 2018.
- 50.
Ibid.
- 51.
Roberts and Sivakumaran 2012, p 144.
- 52.
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950), Article 3.
- 53.
Roberts and Sivakumaran 2012, p 120.
- 54.
ICRC 2016, p 284, para 847. For a peace agreement based on Common Article 3, see, e.g., Final Agreement to End the Armed Conflict and Build a Stable and Lasting Peace, concluded between the National Government of Colombia and the Revolutionary Armed Forces of Colombia – People’s Army, 24 November 2016. http://especiales.presidencia.gov.co/Documents/20170620-dejacion-armas/acuerdos/acuerdo-final-ingles.pdf. accessed 23 May 2018, which explicitly states that it is signed by the parties “as a Special Agreement pursuant to Article 3, common to the 1949 Geneva Conventions, as per its international standing”, p 5.
- 55.
ICRC 2016, pp 285–286, paras 850–852.
- 56.
Ibid., p 287, para 854.
- 57.
ICRC 1992. Note also that the agreement contains a provision similar to Common Article 3 stating that the agreement is “without any prejudice to the legal status of the parties to the conflict or to the international law of armed conflict in force.”.
- 58.
Democratic Republic of the Congo 2008.
- 59.
- 60.
- 61.
Kallon and Kamara, above n 3, para 42.
- 62.
Ibid., para 48. This decision has been criticised in legal literature, see, e.g., Cassese 2004, pp 1133–1134.
- 63.
ICTY, Appeals Chamber, Prosecutor v Stanislav Galić, Judgement, 30 November 2006, Case no. IT-98-29-A, para 119.
- 64.
International Commission of Inquiry on Darfur 2005, para 174.
- 65.
- 66.
See Sivakumaran 2006, p 390 where he states that “the only requirement for an international humanitarian law agreement between a state and an armed opposition group with international legal personality to be international in character is for the parties to intend the agreement to be an international one as evidenced from the text of the agreement itself.” See also Cassese 2004, pp 1134–1135.
- 67.
Cf. VCLT, above n 35, Articles 11–17.
- 68.
Bell 2006, p 385.
- 69.
ICRC 2016, p 286, para 853.
- 70.
See Sivakumaran 2012, pp 119–122 referring to several examples.
- 71.
Geneva Call, Deed of Commitment. https://genevacall.org/how-we-work/deed-of-commitment/. Accessed 18 April 2018.
- 72.
ICJ, Nuclear Test Case (Australia v France), Judgment, 20 December 1974, [1974] ICJ Rep 253, para 43.
- 73.
Cf. ibid.
- 74.
Roberts and Sivakumaran 2012, p 142.
- 75.
Ibid., p 143.
- 76.
See Sivakumaran 2011, pp 11–12 discussing commitments of NSAGs that fall below existing IHL norms. Such commitments remain without legal value to the extent they do not meet existing obligations already incumbent upon NSAGs.
- 77.
Sassòli 2010, p 32.
- 78.
ICJ, Case Concerning the Continental Shelf (Libyan Arab Jamahiriya v Malta), Judgment, 3 June 1985, [1985] ICJ Rep 13, para 27.
- 79.
See, e.g., Murray 2015, pp 107–108.
- 80.
Henckaerts and Doswald-Beck 2005, p xxxvi.
- 81.
For example, Sandesh Sivakumaran observes that “[t]he extension in granting international legal personality to armed opposition groups has not been followed by a similar extension as regards their ability to contribute to the practice required for the formation of customary international law.” Sivakumaran 2006, p 374. See also UN General Assembly (2014) International Law Commission: Second report on identification of customary international law, Sir Michael Wood, Special Rapporteur, UN Doc A/CN.4/672, pp 16–17 and 32–33.
- 82.
Henckaerts 2003, p 128.
- 83.
International Law Association Committee on Formation of Customary (General) International Law 2000, p 8 (emphasis added).
- 84.
- 85.
- 86.
See Roberts and Sivakumaran 2012, p 151.
- 87.
In this regard, it is possible that the development of customary IHL applicable in NIACs might be slowed down if NSAGs are recognised as having a law-making role. The divergence in terms of practice and views both within the broad category of NSAGs and between that category and States would likely make it more difficult to achieve the widespread and consistent practice required for the formation of customary rules of international law.
- 88.
North Sea Continental Shelf Cases, above n 20, para 63.
- 89.
Statute of the International Court of Justice, 33 UNTS 993, entered into force 24 October 1945, Article 38(1)(b). See also North Sea Continental Shelf Cases, above n 20, para 73; Villiger 1997, pp 29–30.
- 90.
See, e.g., ICJ, Asylum Case (Colombia v Peru), Judgment, 20 November 1950, [ICJ, Asylum Case (Colombia v Peru), Judgment, 20 November (1950)] ICJ Rep 266, pp 267–277; ICJ, Case Concerning Right of Passage over Indian Territory (Portugal v India), Judgment, 12 April 1960, [1960] ICJ Rep 6 (Right of Passage Case), p 39. See also Villiger 1997, p 56; D’Amato 1969.
- 91.
See, e.g., Sassòli 2016.
- 92.
See, e.g., UN General Assembly (2015) International Law Commission: Third report on identification of customary international law, Sir Michael Wood, Special Rapporteur, UN Doc. A/CN.4/682, pp 54–56.
- 93.
Villiger 1997, p 56.
- 94.
Arend 1999, p 177.
- 95.
See, e.g., Harvard Law Review Association 1967, pp 856–857. See, more generally, Arend 1999, pp 177–178 and cf., also Murray 2015, p 107. See also Sassòli 2010, p 23 where he explored the possibility of NSAGs developing amongst themselves a new transnational law of armed groups, so called “lex armatorum”, which is not necessarily restricted to customary law.
- 96.
This includes the adoption by the Revolutionary United Front of Sierra Leone of “Eight Codes of Conduct”, which is almost identical to the Chinese People’s Liberation Army (CPLA)’s Eight Points of Attention, and the use by the New People’s Army of the national Democratic Front of the Philippines of the Three Main Rules of Discipline and Eight Points of Attention of the CPLA. See Roberts and Sivakumaran 2012, p 132.
- 97.
Villiger 1997, p 56.
- 98.
See also Sassòli 2010, p 25.
- 99.
See Bílková 2015, p 265.
- 100.
For example, Geneva Call lists among the groups that have undertaken to comply with humanitarian rules some which are no longer involved in an armed conflict. See Geneva Call, Armed Non-State Actors. www.genevacall.org/how-we-work/armed-non-state-actors. Accessed 18 April 2018; Sassòli 2010, p 22; Sassòli 2016.
- 101.
See Henckaerts and Doswald-Beck 2005, p xxxii; Bugnion 2007, p 10; International Law Association Committee on Formation of Customary (General) International Law 2000, p 14; UN General Assembly (2014) International Law Commission: Second report on identification of customary international law, Sir Michael Wood, Special Rapporteur, UN Doc. A/CN.4/672, pp 19–21.
- 102.
Henckaerts and Doswald-Beck 2005, p xxxii.
- 103.
Ibid.; International Law Association Committee on Formation of Customary (General) International Law 2000, p 14.
- 104.
- 105.
See Roberts and Sivakumaran 2012, pp 149–150 referring to numerous examples.
- 106.
See Henckaerts and Doswald-Beck 2005, p xxxiv; International Law Association Committee on Formation of Customary (General) International Law 2000, p 17. In order to identify which acts constitute “official” state practice, reference has been made to the law on State responsibility. Thus, it is considered that the practice of the executive, legislative and judicial organs of the State can contribute to the formation of customary international law, since the organs of these branches can engage the international responsibility of the State. The ILA opines that, “although this is not a conclusive argument, in the present context the analogy seems persuasive.” See also UN General Assembly (2014) International Law Commission: Second report on identification of customary international law, Sir Michael Wood, Special Rapporteur, UN Doc. A/CN.4/672, pp 17–19.
- 107.
See Zegveld 2002, pp 152–155.
- 108.
For example, a White House executive order of 4 July 1999 defined the Taliban as “the political/military entity headquartered in Kandahar, Afghanistan that as of the date of this order exercise de facto control over the territory of Afghanistan […], its agencies and instrumentalities, and the Taliban leaders”. See United States, Executive Order 13129 of 4 July 1999, Sec. 4(c).
- 109.
This includes courts set up by the FMLN in El Salvador; “People’s courts” convened by the CPN-M in Nepal, and LTTE courts in Sri Lanka. For a discussion, see Sivakumaran 2009, pp 490–495.
- 110.
Clapham 2010, p 43.
- 111.
Roberts and Sivakumaran 2012, p 151.
- 112.
International Law Association Committee on Formation of Customary (General) International Law 2000, p 16.
- 113.
McCorquodale 2004, p 499.
- 114.
See Solum 2010.
- 115.
Ibid., p 96.
- 116.
See also Sivakumaran 2009, p 506 who similarly argues that “[a]t some points, rights cease to be modified and start to be breached.” There is a “minimum core content” of any right in international human rights law below which it is violated.
- 117.
See VCLT, above n 35, Article 31.
- 118.
See Koh 1997, pp 2639–2640.
- 119.
- 120.
- 121.
Ibid., p 20.
- 122.
Rondeau 2011, pp 660–661.
- 123.
See, e.g., Sassòli 2010, pp 16, 21 and 34.
- 124.
Villiger 2009, pp 445–446.
- 125.
Article 31(3)(c) stipulates that any relevant rules of international law applicable to the parties shall be taken into account in the interpretation of the treaty.
- 126.
- 127.
SCSL, Appeals Chamber, Prosecutor v Moinina Fofana and Allieu Kondewa, Judgement, 28 May 2008, Case no. SCSL-04-14-A, para 144.
- 128.
Stockholm District Court, Prosecutor v Omar Haisam Sakhanh, Judgment, 16 February 2017, Case no. B 3787-16, paras 26, 29 and 31.
- 129.
Ibid., para 31.
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Case Law
ICJ, Asylum Case (Colombia v Peru), Judgment, 20 November 1950, [1950] ICJ Rep 266
ICJ, Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America), Judgment, 27 June 1986, [1986] ICJ Rep 14
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Treaties
Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (and Protocols) (as amended on 21 December 2001), opened for signature 10 April 1981, 1342 UNTS 137 (entered into force 2 December 1983)
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950)
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, opened for signature 12 December 1977, 1125 UNTS 3 (entered into force 7 December 1979)
Statute of the International Court of Justice, 33 UNTS 993, entered into force 24 October 1945
Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980)
Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, opened for signature 21 March 1986, UN Doc. A/CONF.129/15 (has not yet entered into force)
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Hiemstra, H., Nohle, E. (2019). The Role of Non-State Armed Groups in the Development and Interpretation of International Humanitarian Law. In: Gill, T., McCormack, T., Geiß, R., Krieger, H., Paulussen, C. (eds) Yearbook of International Humanitarian Law, Volume 20, 2017. Yearbook of International Humanitarian Law, vol 20. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-264-4_1
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