Compliance Symposium: Pariah or Stakeholders? Enhancing Compliance with Humanitarian Norms by Including Non-State Armed Groups’ Views and Practice

[Annyssa Bellal is a Senior Research Fellow and Strategic Adviser on International Humanitarian Law (IHL) at the Geneva Academy of IHL and Human Rights and a Senior Lecturer in international law at Sciences Po, Paris, the University of Bern and the Geneva Academy. Pascal Bongard is the Head of the Policy and Legal Unit at Geneva Call.]

In August 2015, Amnesty International (AI) issued a report exposing a wave of forced displacement and home demolitions allegedly carried out by the People’s Protection Unit (YPG), a non-State armed group (AG) active in northeast Syria. This report provoked a reaction from the YPG, which argued in a detailed statement that the use of the term ‘forced displacement’ by AI was ‘arbitrary’, and its legal analysis inaccurate. In particular, the YPG contested the conclusion that the cases presented in the report amounted to war crimes and referred to the exception for “imperative military reasons” provided under the Rome Statute of the International Criminal Court. This is an interesting example of an AG conveying its interpretation on a humanitarian norm. Whether or not one agrees with the AG’s position, the discussion it sparked allowed other non-governmental organisations (NGOs) to further discuss issues related to forced displacement with the YPG.

AGs are key players in today’s armed conflicts. Although international humanitarian law (IHL) provides a comprehensive framework to regulate these conflicts, violations are widespread. Examples include deliberate attacks against civilians or civilian facilities such as schools and hospitals, forced displacement, sexual violence, use of child soldiers and obstruction to humanitarian assistance. AGs are responsible for many of these violations. Yet while a number of studies have analysed states’ practices, how AGs view and interpret their international obligations has remained insufficiently explored. This knowledge gap has created challenges for humanitarian organizations seeking to engage with AGs on humanitarian access and respect for IHL.

Attitudes and sources of influence on AG behaviour 

The perspectives of AGs towards IHL, as well as their actual behaviour on the battlefield, are diverse and may change over time. They are contingent on a number of factors. For instance, a lack of capacity can explain the difficulties for AGs to comply with certain rules.  Other factors influencing their level of compliance are linked to the groups’ organizational structure, their aims, ideology, leadership, external support and relationships with communities. Those AGs constituted around economic endowments are predicted to be more violent, while rebellions rooted in social endowments are expected to show restraint. Critical historical analysis has also unveiled the ideological evolution of certain Jihadist AGs, such as the Islamic State (IS) and Al Qaeda and their affiliates, to attack civilians as a political strategy. Finally, legal scholarship has also reminded us that the effectivity of any legal system depends also on the norms reflecting the needs and characteristics of the actors that they are supposed to govern. This is especially problematic for the international (state-centric) legal system which precludes AGs from participating in the making of the norms that are applicable to them.

Humanitarian engagement as a means to enhance compliance

Empirically, it has been long recognised that engaging AGs is a critical element in any effort to strengthen compliance with humanitarian norms. IHL provides a solid basis by establishing the right for impartial humanitarian organizations to offer their services to the parties to a conflict, which include non-State parties. The case for engagement with AG is also endorsed in a number of UN resolutions and reports. For instance, since 2009, the UN Secretary-General has repeatedly stressed in his reports on the protection of civilians in armed conflict the importance of engaging and training AGs on IHL. In his report of 2019, he noted that

‘[e]nhancing respect for the law requires changing the behaviour and improving the practices of non-State armed groups. Key to this is principled and sustained engagement by humanitarian and other relevant actors that is, moreover, strategic and based on a thorough analysis of the group(s) concerned’.

Yet humanitarian NGOs on the ground often lack the knowledge they need to effectively engage with AGs. They often fail to understand AGs’ perspectives and motives to behave in a certain way, what makes them facilitate or hinder humanitarian access, respect or violate IHL rules. Without a thorough understanding of compliance dynamics and AGs’ practice, humanitarian actors may not be able to fulfil their mandate. A 2018 ICRC study further underscores the acute need for a solid knowledge base to inform humanitarian engagement, notably by ‘understanding the structure of armed groups as a first step in identifying potential sources of influence over their behaviour’. According to this study, ‘familiarity with an armed group’s history and ideological references is essential for effective dialogue with that group’.  The ill-preparedness of humanitarian actors is acknowledged in a number of studies, including during the Global Consultation for the World Humanitarian Summit, when it was said that humanitarian actors should reinforce their capacities to engage in a humanitarian dialogue with AGs.

The importance of considering AG’s perspectives on international norms

Traditionally, theories of compliance in political sciences and conflict studies have largely adopted an instrumental perspective, focusing on the influence of deterrence or coercive measures, such as the imposition of sanctions for violations of the law or the risk of reputational damage that would result from non-compliance by AGs of humanitarian norms. However, the effectiveness of the IHL framework might be limited due to the regime’s weak enforcement mechanisms. While violations of humanitarian norms by AGs occur on a daily basis, the law is in fact rarely known by fighters on the ground and compliance also largely depends on the parties’ capacity and willingness to implement them.

Drawing on practical experiences when dealing with AGs, scholars have highlighted the importance of creating a sense of ownership for norms. Recent studies have shown that AGs might feel bound by the norms they have agreed to, rather than by international treaties or customary rules created by states. A preliminary conclusion asserts that it would be problematic to expect AGs to respect legal regimes drafted by the very same actor they seek to overthrow. This seems obvious when AGs are fighting against a state, but it also holds true when they are fighting each other, to the extent that the recourse to violence by the groups is usually contrary to the state’s domestic law to begin with. It seems clear that if humanitarian norms were to be imposed on AGs only by virtue of a state’s acceptance – thus entailing a ‘top-down’ approach – the legitimacy of such norms from the standpoint of AGs could be diminished. Analysing and understanding AGs interpretation and implementation of existing norms thus deserves further examination as it is likely to improve their behaviour if they are included in the humanitarian debates that concern them.

Building on previous studies, the Geneva Academy of International Humanitarian Law and Human Rights in collaboration with Geneva Call and the American University of Cairo have embarked on a research project on AG’s practice and interpretation of international humanitarian norms. The ambition of the research is to conduct a comparative analysis of AGs’ attitudes and provide for an indication on how AGs understand the rules applicable to them, which rules are the most accepted or disputed and why. While a number of studies have analysed states’ practice, such as the 2005 ICRC study on customary IHL, a comprehensive analysis of existing humanitarian norms from the perspective of AGs has yet to be made. Only then, one will ‘know how the existing rules and possible future development of IHL (…) would change if they were taking the perspective of non-State armed groups into account’. The analysis will also shed light on the root causes of violations and, a contrario, on the factors that are conducive to compliance or restraint. Altogether, it is expected that the results of the research will advance our understanding of AGs’ perceptions of their international obligations and their behaviour in conflict settings; inform strategies to promote AGs’ compliance with IHL and help identify new issues that AGs would be willing to regulate in the future.