Inviting non-state armed groups to the table. Inclusive strategies towards a more fit for purpose international humanitarian law (original) (raw)
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Contemporary armed conflicts are characterised by an increase of violence against civilians and a lack of compliance with international humanitarian law (IHL) by both states and armed non-state actors (ANSAs). The international community has acknowledged the importance of engaging ANSAs on compliance with international norms to any effort to improve the protection of civilians in armed conflict, despite the fact that it is, in some contexts, actively discouraged or even prohibited by states. This chapter aims at identifying the key elements as well as the challenges underlying the humanitarian engagement of armed non-state actors. It will argue that meaningful engagement, that is engagement that also takes on board the views, perceptions and conceptions of international norms by ANSAs calls for a much more sustained effort from the part of the international community. These efforts include the need of more systematic research on the facts and scale in which ANSAs allegedly violate IHL, more inquiry in their actual practice and their impact on the development of international norms, a clarification on the applicable legal framework as well as a more thorough reflection on means to establish a coherent and just system of accountability in case of violations.
McGill GLSA Research Series, 2022
Today, non-international armed conflicts involving the participation of Armed Non-State Actors (ANSAs) are of remarkable significance, especially when compared to interstate armed conflicts. Yet, despite the significant role ANSAs play in modern-day conflicts, they constitute an "anomaly" in the current State-centric international legal system. ANSAs' degree of dispersion, influence, and effect on international politics challenges 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". Thus, it is necessary to establish strategies for interacting with ANSAs considering the possibility of "adapting" international law, especially International Humanitarian Law (IHL), in light of their role. To identify the main shortfalls of the relevant IHL norms, particularly the 1949 Geneva Conventions and their Additional Protocols, firstly it is 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 the limitations of International Human Rights Law since it does not apply in situations of internal strife or disturbance, where ANSAs also pose serious threats. Starting with the Syrian armed conflict, this paper aims to put forward innovative solutions, such as "backchannel diplomacy", to foster States' and ANSAs' collaboration. Within the scope of the study, some recommendations are proposed, including the establishment of a working table with the participation of States, international and regional organizations, and civil society, with the task to adapt IHL while mindful of ANSAs' role. Lastly, there is an attempt to find effective tools to ensure that ANSAs comply with IHL.
In the last few decades, the role and status of armed non-state actors (ANSA) have become essential topics of analysis and discussion in order to better understand current international humanitarian law (IHL) and international human rights law (IHRL) dynamics. Although contemporary public international law still seems to be predominantly State-oriented, it is undeniable that a variety of these non-state entities have played quite important roles, giving rise to many discussions and complex debates. One relevant issue is related to the reasons why they are bound by international law. A classical approach to the traditional theory of sources of international law relies on the consent given by States to be bound by an international rule. When dealing with ANSAs, however, the reasons why they are obligated by both IHL and IHRL lie beyond merely accepting the existence of their obligations. While some views take into account their consent, others are based on their relationship with territorial States and the rules previously accepted by States' authorities. Implementing one or the other is not merely an intellectual exercise, and which alternative is taken will certainly have a direct impact on the effectiveness of international law as perceived by ANSAs.
‘Yes, I Do’: Binding Armed Non-State Actors to IHL and Human Rights Norms Through Their Consent
2018
In the last few decades, the role and status of armed non-state actors (ANSA) have become essential topics of analysis and discussion in order to better understand current international humanitarian law (IHL) and international human rights law (IHRL) dynamics. Although contemporary public international law still seems to be predominantly State-oriented, it is undeniable that a variety of these non-state entities have played quite important roles, giving rise to many discussions and complex debates. One relevant issue is related to the reasons why they are bound by international law. A classical approach to the traditional theory of sources of international law relies on the consent given by States to be bound by an international rule. When dealing with ANSAs, however, the reasons why they are obligated by both IHL and IHRL lie beyond merely accepting the existence of their obligations. While some views take into account their consent, others are based on their relationship with terr...
In recent times, much of the focus has been placed on the incorporation of certain non-state actors, such as NGOs and transnational corporations, into different lawmaking processes, although the resulting rules are considered soft law. However, little attention has been paid to the possibility of affording armed groups a degree of participation in law-making processes, in large part due to the argument that this might inappropriately legitimize such groups. Although it is not realistic for non-state armed groups (NSAGs) to fully participate in multilateral treaty-making processes, it will be argued that it is possible to include some of their views in the development of future humanitarian rules. In this paper, I will deal with four mechanisms through which armed groups could be included in law-making processes. Special consideration will be given to the Geneva Call Deed of Commitment in the case of Sudan as this provides an example of the way in which the commitment of an armed group to adhere to rules of international humanitarian law can influence the position of states in connection with ratifying treaties on IHL (in this case, the Ottawa Convention).
Asia-Pacific Yearbook of International Humanitarian Law, 2011
Today, the majority of armed conflicts are waged within the state boundaries resulting in much destruction, ruin and victims. Notwithstanding significant advancement in the international legal regulation of armed conflicts between states, it should be recalled that there is only a limited number of the provisions of IHL treaties applicable to non- international armed conflicts (NIAC). Given this circumstance, few would doubt that ensuring compliance with international humanitarian law (IHL) by all parties to NIAC, including non-state actors, becomes a major challenge. This challenge remains as urgent today as before. This article provides a brief account of existing definitions, legal rules, gaps and problems related to the compliance of NSAs with the humanitarian law applicable to an NIAC, then goes on to less explored issues such as the used of specific weapons by non-State armed groups, examples of this and threats posed by such use, and, finally, delineates the ways suggested to ensure the NSAs' proper compliance in this regard. The principal argument that the article proposes is this: despite the absence of a "solid" treaty-based grounding as it is traditionally understood in international law, as well as the existing problematic legal and political questions over armed groups' compliance with relevant IHL norms-and because of the very necessity of taking into proper account the reality of armed conflicts today - the question of non-State actors' compliance with IHL rules on the use of weapons should be given more consideration, and different ways aimed at ensuring such compliance should be sought.
2016
During situations of armed conflict, United Nations (UN) agencies have been consistently faced with challenges to access vulnerable populations in order to fulfill their humanitarian mandates. This is particularly true in countries such as Yemen, Libya, and Ukraine who have faced prolonged conflict situations from as early as 2010. During these conflicts, UN agencies have been frequently unable to enter areas that are controlled by non-state armed groups. There are several legitimate reasons for these access challenges, one of which includes the inadequate legal framework that governs non-state armed groups. This is not to neglect the operational and executive ineffectiveness of the UN or the political dynamics that shape these conflicts. In fact, this paper argues that these aspects complement the insufficiencies that are witnessed within the international legal system. The ineffectiveness of the UN, which is ultimately driven by the political interests of states, have not only been part and parcel to the genesis and influx of non-state armed groups in the respective countries, but have also played a major role in maintaining the legal positioning of non-state armed groups as a byproduct of the international system rather than main actors. The paper maintains that non-state armed groups have become significant players in international relations due to their increase in regional power and ability to affect politics. With this reality, the current legal framework that governs non-state armed groups has been proven to be an insufficient mechanism of enabling the interaction between UN agencies and non-state armed groups. In an attempt to ease such an interaction, the paper proposes some legal reforms, which are based on findings that prove the inconsistencies of that legal framework. It also offers policy suggestions for operational reforms within the UN system to facilitate the efficient implementation of the legal reforms.