How Focusing on Non-State Actors Can Change the IHL Narrative

[Ezequiel Heffes is a Thematic Legal Adviser, Geneva Call. PhD Candidate, Grotius Centre for International Legal Studies, Leiden University; Marcos D. Kotlik is an Associate Legal Officer at the International Court of Justice, the Academic Coordinator, Observatory of IHL, Universtiy of Buenos Aires and a PhD Candidate, IHEID. The views expressed in this article are personal to the authors and do not necessarily reflect those of Geneva Call, the International Court of Justice or of any other institution].

The role that non-State actors (NSAs) play in relation to international humanitarian law (IHL) is much larger than traditionally recognized. They perform various functions, interacting with States and among themselves, in many settings and with different degress of (in)formality. This reveals that IHL is not the exclusive province of States. Accordingly, placing focus on these dynamics is indispensable to properly address current and future challenges faced by IHL.

The activities of NSAs have consistently and conspicuously affected the evolution of IHL for a long time. IHL has applied to entities other than States at least since the 18^th century, when the recognition of belligerency doctrine emerged. In addition, the creation of the International Committee of the Red Cross (ICRC) more than 150 years ago significantly modified the way in which this legal framework is implemented, developed, and enforced. But the situation today is even more complex. Individuals or groups of individuals, by themselves or through specific institutions, constantly operate within the framework of established and evolving practices and norms in and around situations of armed conflict.

To be clear, States continue to play an essential role in IHL, but they are not involved in every interaction, nor can they claim to have a domaine reservé over some functions. Developments in IHL increasingly account for various functions performed not only by non-State armed groups (NSAGs) and the ICRC, but also by the United Nations (UN) and other international organizations, non-governmental organizations (NGOs), private military and security companies, religious actors, local communities, and many others. NSAs are no longer exclusively law-takers, but also law‑shapers, law-influencers, law‑interpreters, law‑makers, law‑enforcers, or a combination thereof.

In a recently edited volume, we embrace this legal environment and suggest that NSAs’ functions cannot be examined in isolation if we wish to avoid a compartmentalized depiction of IHL dynamics. Beyond the direct and vertical relation between the law and its addressees, we identify four phenomena of contemporary IHL that can help to better understand a much more complex picture.

The proliferation of NSAs that are involved in armed conflicts

While this may seem obvious, since the majority of armed conflicts nowadays are of a non‑international character (here, at 19, and here, at 13), we do not only refer to the increasing number of NSAGs that are parties to conflicts, but to a variety of different entities and the way in which they are categorized. Humanitarian NGOs, for instance, provide humanitarian relief and assistance to vulnerable people on a daily basis. They also play an active role “in negotiating humanitarian corridors and access to distressed populations, and, in some cases, in bringing warrying parties to the negotiation table” (para. 54). Human rights organizations also perform functions in conflict settings. Although they have traditionally focused their attention on governments, it is not uncommon for them to report violations or abuses by NSAGs, advocating for their compliance with international standards (here, here and here). Religious actors, who can be grouped as a specific NSA category, engage with IHL in different ways, either supporting its application or, on the contrary, spreading messages against its values (here, here and here). UN bodies are also increasingly involved on issues related to the application and enforcement of this legal framework.

The choice of terms to designate these and other NSAs (and their activities) has important normative implications. If we speak of ‘armed non-State actors’, ‘NSAGs’, ‘private military and security companies’, etc., we construct relationships between these entities and IHL based on certain assumptions and understandings, which leads to identify and stress particular strengths and shortcomings. As Bellal has affirmed, “in law, words and what they describe matter, as definitions or classifications will usually inform the applicable legal regime to a particular person or entity (applicability rationae personae) or a particular act or behavior (applicability rationae materiae)” (at 23). Therefore, the proliferation of NSAs – and consequently of the categories employed to designate them – affects how existing rules are interpreted and how new ones are developed.

The expansion of the international rules that regulate the conduct of NSAs beyond IHL

Given the growing importance of NSAs in situations of armed conflict, it has become necessary to regulate unforeseen scenarios. The relationship between NSAs and the law, in and around armed conflicts, has gone beyond the realm of IHL in several respects, and may be expected to continue along that path. The application of international human rights law and international criminal law to NSAs and their members in the context of armed conflicts have been prominent topics in legal literature for some time. This is usually justified by i) the existence of protection gaps left by IHL, in particular regarding the people living in territories controlled by NSAGs; and ii) the need for a wider range of accountability mechanisms.  

Other areas of law applicable to NSAs may progressively prove to be of similar relevance. These may include the regulation of weapons transfers and development, international institutional law, international environmental law, and the law governing international responsibility of collective entities other than States (see e.g. here, here, here and here).

The development of IHL by NSAs

It is well-known that the ICRC plays an important role in promoting the conclusion of international treaties and in identifying customary law. In this sense, Article 5(2)(g) of the Statutes of the International Red Cross and Red Crescent Movement establishes that the ICRC is “to work for the understanding and dissemination of knowledge of international humanitarian law applicable in armed conflicts and to prepare any development thereof”. It is also a prominent feature of humanitarian discussions that, in different fora, NGOs advocate for new rules or the modification of existing ones.

In describing this phenomenon, however, it is also necessary to consider the role of NSAGs in shaping, interpreting, and making the law, for instance through the conclusion of special agreements between the parties to the conflict or via the adoption of action plans with the UN. In 2019, two NSAGs from the Central African Republic, and one from Syria, signed the latter, committing to release children from their ranks and to prevent future recruitment. Both action plans and special agreements have gone beyond the IHL rules applicable to non‑international armed conflicts, including IHL obligations that apply in international armed conflicts, as well as human rights provisions. NSAGs also play a major role in igniting legal debate and exposing (potential) gaps in IHL, as has been the case, for example, with respect to their power/authority to detain in non-international armed conflicts (see here and here).

Moreover, international judicial and quasi-judicial bodies – which can also be considered NSAs – play a crucial role influencing how other actors (including States) currently understand, apply, and continue to develop IHL rules. Even if universal and regional human rights bodies, international and hybrid tribunals, and the International Court of Justice, were all created by States, they are distinct from them and carry out their mandates with autonomy and independence. It should not be overlooked, thus, that each one of these bodies constructs its own relationship with IHL within their particular institutional, legal, and historical context.    

The emergence of horizontal interactions between NSAs

While the relations between NSAs and States are usually core IHL issues (e.g. confrontations between NSAGs and States’ armed forces, or engagement between humanitarian actors and States), multiple interactions in and around armed conflicts involve exclusively or predominantly NSAs – for lack of a better term, we call them “horizontal interactions”. While they occur for multiple purposes in diverse deliberative, adjudicative, and executive arenas, it is noteworthy that many of them are aimed at improving compliance with IHL. Alongside the ICRC’s engagement with NSAGs that are parties to conflicts, or with private military and security companies, many NGOs perform important tasks in the humanitarian domain. As explained above, they may denounce international law violations or abuses, such as in a recent report by Human Rights Watch, claiming that NSAGs in Colombia “have committed killings and other abuses against civilians in an effort to enforce their own measures to prevent the spread of COVID-19”. They can also act as liason between different NSAs, as is the case of an event organized by Geneva Call in December 2019, where prominent religious scholars from Lebanon, Syria, Bahrain, Iraq and Iran adopted a joint statement on the protection of civilians in armed conflict. In addition, international organizations may help to create complex NSA-networks, like the UN’s framework on children affected by armed conflicts, which brings together different UN agencies, international and national NGOs, local communities, NSAGs (and, of course, also States). In our view, as a whole, this form of interaction is an underexplored topic of IHL dynamics, and it is necessary to further reflect on the opportunities it offers and the challenges it will bring about. 

Looking ahead: Is a non-State centric IHL possible?

We do not claim that these four phenomena exhaust the avenues available to explore IHL dynamics and the part played by NSAs therein, but they appear to embody themes that are not always addressed as a whole. As Iain Scobbie has explained, “international law does not exist in an intellectual vacuum”, and the way we understand IHL and what it does, or should do, is based on a set of “theoretical assumptions and presuppositions” (p. 53). When moving away from the traditional State-centric approach, many assumptions and presuppositions about IHL can be questioned. Focusing on the funcions performed by NSAs, and the interactions between them, underscores their agency and leads to an understanding of international law as more than a simple body of State-centric rules – it is rather a decision-making process.

Law, practice and policy can be vehicles for such a conceptual adjustment, and they are inextricably linked, either reinforcing, ignoring or resisting each other. These are not elements to examine in isolation if we are genuinely concerned about the future of IHL. Among the different phenomena explored, we believe that horizontal interactions provide the greater opportunities to think creatively, to design new strategies that address the practical problems faced as a result of contemporary armed conflicts, and to prevent the law from lagging behind. Decision-makers at every level bear a responsibility in bringing about a shift in focus. In this way, a new narrative can be developed, one that helps to fully grasp and meet the challenges related to the application of IHL. At the very least, it would ensure that the IHL of today, and not of the past, is addressed.

This post is based on the recent volume edited by Ezequiel Heffes, Marcos D. Kotlik and Manuel J. Ventura, International Humanitarian Law and Non-State Actors. Debates, Law and Practice (Springer/Asser Press, 2020), to be presented later today.