IHL Rules for Protecting Persons living in the territory under the control of non-state armed groups

by Divya Sharma, Student at University of Kent 

Abstract

Unlike in international armed conflict, there is no law of occupation for non-
international armed conflict, meaning there are no IHL rules explicitly designed to
regulate the relationship between non-State armed groups and persons living under
their control. However, IHL rules are applicable to provide protection to persons
living under control of NSAG’s. This blog focuses on the determination of the IHL
rules given to protect persons living under the territory of the controlled non-state
armed groups.

Under the international law regime, IHL is applied for the entire duration of a conflict, and it is the most relevant law applicable during the armed conflict. Many contemporary challenges arise in the application of the IHL in different situations. This blog focuses on the determination of the IHL rules given to protect persons living in the territory of the controlled non-state armed groups. 

To apply IHL rules, two conditions should be met firstly, that there must be an armed conflict. Secondly, the group must possess the defined structure per the IHL criteria (as explained in the international case law Prosecutor v Tadic). Relevant to our current discussion, it is important to note that armed non-state actors need to satisfy the more stringent requirement for ‘control of territory’ (article 1, paragraph 1 of additional protocol 11) to satisfy defined structure as per IHL rules. [1]

NSAG’S ( Non – State armed groups) have become an essential topic that plays a dynamic role in identifying the definition under the IHL. As the state parties involved during an armed conflict, IHL rules equally apply to these non-state armed groups. 

In the IHL sphere, non-state actors and state actors have equal obligations to states as recognized by the international conventions. 

  • Common Article 3 (CA3) of the Geneva Conventions of 1949. Article 3 is common to all four Geneva Conventions and includes important rules that are bound to be followed by both parties during an armed conflict. In the present scenario, non-international armed conflict is more common applying common article 3 is of utmost importance. Common article 3 requires humane treatment for all persons in enemy hands, without any adverse distinction. It requires that the wounded, sick and shipwrecked be collected and cared for. It grants the ICRC the right to offer its services to the parties to the conflict. It calls on the parties to the conflict to bring all or parts of the Geneva Conventions into force through so-called special agreements. It recognizes that applying these rules does not affect the legal status of the parties to the conflict. [2]
  • Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), 12 August 1949. 
  • Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), 12 August 1949. 
  • Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), 12 August 1949. 
  • Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949.  
  • Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II). 

Regarding international human rights law, in the more legal point of view, they are applied to the NSAG’s only in specific circumstances when they are in control of the territory, which means the de facto control of the territory. Due to the lack of human rights law treaties and insufficient laws concerning the non-state actors, ICRC takes a pragmatic approach to make these non-state actors responsible for the human rights violations. It operates on the premise that human rights obligations can be recognized on a de facto basis. If a non-state actor has sufficient control over the territory and can act as a state authority, then the non-state actors have human rights obligations as a matter of law. 

Their control over the specific territory would justify the application of the IHRL. [3] Furthermore, according to the recent study conducted by the International Law Association, it concluded that even though the non-state actors are not directly bound by the human rights law under the international law regime, but they are would still be bound by jus cogens norms. Norms of jus cogens – the peremptory norms of international law – are defined by Article 53 of the 1969 Vienna Convention on the Law of Treaties as the norms “accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”  

The existence of such norms is now universally recognized and well established. There is no exhaustive list of the peremptory norms. Still, it is commonly accepted as including the prohibition of the use of force between states, the prohibition of slavery, racial discrimination, torture and genocide, and peoples’ right to self-determination. [4] In addition to that, the protection and respect of children’s rights in armed conflicts are also obligations applicable to the NSAG’s. 

There is a strong political will to make these non-state actors responsible for their actions. For instance, the UN Security Council has, with respect to Afghanistan, “called upon all parties to uphold international humanitarian and human rights law and to ensure the protection of civilian life” Further, on March 2010 UN Secretary-General made few remarks on the human rights issues in Afghanistan where he noted that ‘ closely linked to impunity and the abuse of power are attacks on freedom of expression, carried out by both State and non-State actors. [5] The NSAG’s does not have the same extent of obligations as of the State. Still, the rights to life, to freedom from torture and other cruel, inhuman or degrading treatment or punishment, to health, and education can all be promoted or even violated by NSAG’s by the way they act. [6]

After establishing the IHL and IHRL rules applicable to the NSAG’S, it is equally important to look here that why NSAG’s are bound by these IHL rules in the international scenario. As both the state parties and non-state actors are bounded by the IHL rules, the reason behind this can be different. The reasons why the NSAG’s are bounded by the IHL lie beyond their acceptance and knowledge of these rules. [7] There are few theories in this regard; firstly, some scholars state that they are obligated to comply with the IHL rules due to their consent towards those rules, while others are based on their relationship with the states. According to these theories, the obligation of the non-state actors comes from their commitment to domestic national legislation and on armed groups territorial link to a state party to the Geneva Convention. Both of these theories fall short in the practical scenario as the NSAG’s that might be committed to observing humanitarian rules are unlikely to have any commitment to domestic national legislation, and secondly, these theories do not explain certain situations, such as when NSAGs, while having effective control over a territory, do not claim to represent the State. These unsettled issues may affect why NSAG’s feel obliged to follow up on any IHL rules. The most convincing theory is related to the obligation attached through the customary IHL rules. In his article ‘ Taking armed groups seriously,’ he affirmed that NSAG’s participate in the formation of customary IHL rules, which can be deduced by their actions and public statements in the form of decelerations about their agreements and codes of conduct. Non-state actors in such a way would be logically subject to the customary law in the same way states are subject to the customary law derived from the State’s practise and opinion Juris. [8] 

Further, it is paramount to note here that it is very challenging under the international legal system to interpret the existence of the consuetudo and opinio iuris in the context of non-state actors/armed groups, including the non-state actors in the process of customary law formation may lead to regression. In rare cases, NSAG’s tends to abide by international rules; one of the instances can be put forward by the M23 rebel group when they agreed to withdraw its control from the vital city of Goma in the Democratic Republic of Congo (DRC) in 2012. During the takeover, M23 committed serious human rights violations, but its decision to pull out from the city of Goma was seen as its cooperation with the International law and community. [9]

There is some evidence in the international scenario that the NSAG’s role in the drafting of rules can result in a greater level of compliance from these groups. For instance, at the beginning of 2017, more than forty children left NSAGs operating in the Democratic Republic of Congo after engaging with the Geneva Call on the ban of child soldiers. [10]

Interestingly enough, it is important to mention that the legal accountability of NSAG’s remains unsettled. The NSAG’s are expected to comply with certain rules and obligations. Still, all the existing international courts and tribunals only allow claims against states and individuals, so NSAG’s breach would not entail any legal consequences for the group in general. The question is more focused on the reasonability rather than the legal accountability of the non-state armed groups during a non-international armed conflict. As Sivakumaran has recently explained, “the key point is that armed groups should have some sort of role in the creation, translation and enforcement of humanitarian norms to foster a sense of ownership and therefore improve levels of compliance”. [11]

Disclaimer – All views and opinions expressed in this article are personal and belong solely to the author(s) and do not necessarily represent those of the LAABh Foundation or the individuals and institutions associated with LAABh Foundation.

Endnotes

[1] Annyssa Bellal & Stuart Casey-Maslen , Enhancing Compliance with International Law by Armed Non-State Actors, Goettingen Journal of International Law 3 (2011) 1

[2] The Geneva Conventions of 1949 and their Additional Protocols, ICRC <https://www.icrc.org/en/doc/war-and-law/treaties-customary-law/geneva-conventions/overview-geneva-conventions.htm > accessed on 26 July 2021

[3]  INTERNATIONAL HUMANITARIAN LAW AND THE CHALLENGES  OF CONTEMPORARY ARMED CONFLICTS, ICRC Report <https://www.icrc.org/en/document/icrc-report-ihl-and-challenges-contemporary-armed-conflicts>

[4] Frowein, Jochen A. “Ius cogens.” In Max Planck Encyclopedia of Public International Law. Edited by Rüdiger Wolfrum. Oxford: Oxford University Press, 2013.

[5] Report of the Secretary-General, The Situation in Afghanistan and its Implication for International Peace and Security, 10 March 2010, UN Doc. A/64/705-S/2010/127.

[6] Supra Note 1

[7] Ezequiel Heffes & Brian E. Frenkel, The International Responsibility of Non-State Armed Groups: In Search of the Applicable Rules, Goettingen Journal of International Law ( 2017 )

[8] M. Sassòli, ‘Taking Armed Groups Seriously: Ways to Improve their Compliance with International Humanitarian Law’, 1 Journal of International Humanitarian Legal Studies (2010) 5, 21-22

[9] Aditi Gorur, Striking while the Iron’s Hot: The Case for Humanitarian Engagement with M23 after Goma <https://www.stimson.org/2012/striking-while-irons-hot-case-humanitarian-engagement-m23-after-goma-0/>

[10] Supra note 7

[11] ibid.

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