International Humanitarian Law And Non-State Actors: Debates, Law And Practice 9462653380, 9789462653382, 9789462653399

Table of contents :
Foreword......Page 5
Preface......Page 6
Contents......Page 8
Editors and Contributors......Page 10
1 Introduction: The Functions and Interactions of Non-State Actors in the Realm of International Humanitarian Law......Page 13
1.1 A Shift in Focus......Page 14
1.2 Non-State Actors as an Analytical Category......Page 16
1.3 Non-State Actors in IHL Dynamics......Page 18
1.3.1 The Proliferation of NSAs That Are Involved in Armed Conflict......Page 20
1.3.2 The Regulation of NSAs Involved in Armed Conflict Beyond IHL......Page 21
1.3.3 The Development of IHL by NSAs......Page 22
1.3.4 The Emergence of Horizontal Interactions Between NSAs......Page 23
1.4 Moving Forward: Law, Practice, Policy and NSAs......Page 24
References......Page 25
The Proliferation of NSAs Involved in Armed Conflict......Page 30
Abstract......Page 31
2.1 Introduction......Page 32
2.2.1 A Reference to the Nature of the Actor: The Notion of ‘Armed Forces’......Page 34
2.2.2 The Use of ‘Armed Violence’ as a Distinguishing Feature of ANSAs......Page 37
2.2.3 Types of ‘Armed’ Non-State Actors......Page 38
2.2.4 Do ANSAs Have a Right to Use Armed Force in Certain Circumstances?......Page 42
2.3 Non-State v. State......Page 44
2.3.1 Partially or Non-recognized States......Page 45
2.3.2 National Liberation Movements......Page 46
2.4 ‘Actors’ v. Individuals......Page 48
2.4.1 IHL and ANSAs as Collective Actors......Page 49
2.4.2 The Limits of Individual Criminal Responsibility for ANSAs’ IHL Violations......Page 50
2.5 Conclusion......Page 51
References......Page 52
Abstract......Page 57
3.1 Introduction......Page 58
3.2.1 Definition......Page 59
3.2.2 Typology......Page 60
3.2.2.1 Private Security Services......Page 61
3.2.2.2 Private Military and Security Consulting Services......Page 63
3.2.2.3 Private Military and Security Support Services......Page 64
3.2.2.4 Private Military Services......Page 66
3.3.1 The Question of Status, Rights and Obligations of PMSC Personnel Under IHL......Page 67
3.3.1.1 Mercenaries......Page 68
3.3.1.2 PMSC Personnel and Combatant Status in International Armed Conflicts......Page 70
3.3.1.3 PMSC Personnel and the Applicable Law in Non-international Armed Conflicts......Page 73
3.3.1.4 Direct Participation in Hostilities......Page 74
3.3.1.5 Applying the Notion of Direct Participation in Hostilities to the Different Types of Services Offered by PMSCs......Page 75
3.4.1 The Legally Binding Approach: The UN Draft Convention......Page 77
3.4.2 The Soft Law Approach......Page 78
3.4.2.1 The Intergovernmental Approach: The Montreux Document (2008)......Page 79
3.4.2.2 The Multi-stakeholder Approach: The International Code of Conduct......Page 80
3.4.3 National Approaches......Page 81
3.5 Conclusion......Page 83
References......Page 84
Abstract......Page 88
4.1 Introduction......Page 89
4.2 Relevant Aspects of United Nations Peacekeeping Operations......Page 92
4.3.1 Protection Under the Rules Concerning Humane Treatment......Page 94
4.3.2 Protection Under the Rules Concerning the Conduct of Hostilities......Page 96
4.3.3 Loss of Protection Given to Civilians Under IHL on an Individual Basis......Page 98
4.3.4 Collective Loss of Protection Given to Civilians Under IHL......Page 101
4.3.5 Various Ways in Which the Loss of Protection Could Occur......Page 102
4.4.1 Protective Scope of the Safety Convention......Page 105
4.4.2 Drafting History of the Safety Convention and its Optional Protocol......Page 107
4.4.3 Practice of the ICC......Page 110
4.4.4 Practice of the General Assembly and the Security Council......Page 111
4.4.5 Potential Issues of the Lack of Clarity with the Protective Scope of the Safety Convention......Page 112
4.5 Conclusions......Page 113
References......Page 114
The Regulation of NSAs Involved in Armed Conflict Beyond IHL......Page 121
Abstract......Page 122
5.1 Introduction......Page 123
5.2 Historical Overview of the Ban on the Use of Chemical Weapons......Page 124
5.3 Chemical Weapons Convention and the Practice of the OPCW......Page 127
5.4 Other International Law Sources......Page 133
5.4.1 UN Security Council Resolutions......Page 134
5.4.2 UN General Assembly Resolutions......Page 139
5.4.3 International Counter-Terrorism Treaties......Page 141
5.5.1 The UN Secretary-General’s Mechanism......Page 142
5.5.2 The OPCW-UN Joint Investigative Mechanism......Page 145
5.5.3 Options to Prosecute Under the Rome Statute of the International Criminal Court......Page 147
5.5.4 National Courts......Page 148
5.6 Conclusion......Page 151
References......Page 152
Abstract......Page 156
6.1 Introduction......Page 157
6.2.1 Contextual Requirements......Page 159
6.2.2.1 A Violation of the Laws and Customs of War......Page 160
6.2.2.2 Elements of the Underlying Offence......Page 164
6.3.1 Contextual Requirements......Page 168
6.3.2 Underlying Crime of Unlawful Confinement (Imprisonment)......Page 169
6.4 Conclusion: A Disincentive for Non-State Armed Groups to Respect Standards of Detention......Page 170
References......Page 174
Abstract......Page 176
7.1 Introduction......Page 177
7.2 International Humanitarian Law and the Ambiguity of a Humanitarian Privilege to Detain......Page 181
7.3 International Human Rights Law and the ‘Right Authority’......Page 187
7.4 Conclusion......Page 194
References......Page 198
Abstract......Page 202
8.1 Introduction......Page 203
8.2 Equal Application of International Humanitarian Law to Non-State Armed Groups......Page 204
8.3 State-Centricity of Human Rights Treaties......Page 207
8.4 Reasons for Affirming or Denying Human Rights Obligations of Non-State Armed Groups......Page 209
8.5 Practice Supporting the Existence of Human Rights Obligations of Non-State Armed Groups in Control of Territory......Page 215
8.6 Required Level of Control......Page 220
8.7 Sources and Content of Human Rights Obligations of Non-State Armed Groups......Page 221
8.8 International Responsibility and Monitoring Mechanisms......Page 226
References......Page 229
Abstract......Page 235
9.1 Introduction......Page 236
9.2 International Criminal Responsibility of NSEs: The Emergence of a General Principle of International Law?......Page 239
9.2.1 ‘General Principles of Law Recognized by Civilized Nations’......Page 241
9.2.2 Domestic Legislation and Practice as Expressions of the General Principle......Page 243
9.2.3 International Positive Law and Decisions of International Tribunals......Page 246
9.2.4 UN Security Council Resolutions and Soft Law Instruments......Page 251
9.3 Organized Collective Entities Can (and Do) Commit Crimes......Page 252
9.4 International Criminal Responsibility of Organized Collective Entities Furthers Transitional Justice Objectives......Page 254
9.4.1 Collective Responsibility and the Expressivist Potential of International Criminal Law......Page 255
9.4.2 Prosecuting Collective Entities: Penetrating the Cloak of Collective Innocence......Page 257
9.4.3 The Disarticulating Potential of System Criminality......Page 259
9.4.4 Model of Attribution: The French Model Plus Articles on Responsibility of International Organizations......Page 261
9.5 Conclusion......Page 262
References......Page 264
The Development of IHL by NSAs......Page 269
10 Uses of IHL by the International Court of Justice: A Critical Approach Towards Its Role in the International Legal Arena......Page 270
10.1 Introduction......Page 271
10.2 IHL Decisions Rendered by the ICJ......Page 272
10.2.2 Military and Paramilitary Activities in and Against Nicaragua......Page 273
10.2.3 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory......Page 277
10.2.4 Legality of the Threat or Use of Nuclear Weapons......Page 282
10.2.5 The Genocide Case......Page 283
10.3 Judicial Restraint and Selectivity......Page 285
10.3.1 The Request for Interpretation of the Preah Vihear Decision......Page 286
10.3.2 The Nuclear Weapons Advisory Opinion......Page 287
10.3.3 The Marshall Islands Cases......Page 290
10.4 Conclusions: Voices and Silences, from Legal Adjudication to the Pacific Settlement of Disputes and Back......Page 292
References......Page 298
Abstract......Page 301
11.2.1 The UN Human Rights Council......Page 302
11.2.2 The UN Human Rights Treaty Bodies......Page 306
11.3 Inter-American Commission and Court of Human Rights......Page 309
11.4 European Court of Human Rights......Page 313
11.5 African Commission on Human and Peoples’ Rights......Page 316
11.6 Human Rights Bodies and the Future of Humanitarian Law......Page 317
References......Page 319
Abstract......Page 324
12.1 Introduction......Page 325
12.2 Law Enforcement, the Conduct of Hostilities Paradigm and the Use of Lethal Force......Page 327
12.3 Interpreting IHRL in Light of IHL: The Principle of Systemic Integration......Page 331
12.4 Targeting of Members of Armed Groups Under IHRL......Page 335
12.5 Targeting of Members of Non-State Armed Groups in NIACs: A Conduct-Based Approach to Determine Membership in NSAG?......Page 340
12.6 Towards a Status-Based Use of Lethal Force Under IHRL in Times of Armed Conflict......Page 344
12.7 Conclusion......Page 348
References......Page 349
The Emergence of Horizontal Interactions Between NSAs......Page 353
Abstract......Page 354
13.2 Basis of the ICRC’s Work with NSAGs......Page 355
13.2.1 Necessity and Respect for the ICRC’s Neutral, Impartial and Humanitarian Nature......Page 356
13.2.2 Legal Basis of the ICRC’s Engagement on IHL with NSAGs......Page 357
13.3 The ICRC’s Work in Practice: How to Concretely Generate Respect for the Law......Page 359
13.3.1 Doctrine and Legal Tools......Page 360
13.3.2.1 IHL Dissemination Programmes......Page 367
13.3.2.2 Health Care in Danger......Page 369
13.3.3 Norms of Restraints......Page 371
13.4.1 Adapting the Legal Messages Without Lessening the Standards......Page 373
13.4.2 NSAG’s Practice in Processes of Clarification and Development of the Law......Page 376
13.4.2.1 Strengthening the Protection of Persons Deprived of their Liberty......Page 377
13.4.2.2 Initiative on Compliance with IHL......Page 379
13.4.3 Criminalization of Humanitarian Aid......Page 381
References......Page 384
Abstract......Page 388
14.1 Introduction......Page 389
14.2 Understanding the CAAC Framework as a Predominantly Managerial Approach......Page 391
14.2.1 Identification of the Legal Regime......Page 393
14.2.2 A Dialogue-Based Approach: A Path to Identify and Incentivize NSAGs’ Willingness to Comply with International Law......Page 398
14.3.1 Transparency: Bringing in Multiple Stakeholders......Page 404
14.3.2 Dispute Settlement: A Closer Look at Action Plans......Page 406
14.3.3 Capacity Building: Generating the Tools to Transform Commitments into Concrete Action......Page 412
14.4.1 Limitations Within the Managerial Approach......Page 414
14.4.2 Limitations Beyond the Managerial Approach: The UN Security Council’s Coercive Tool......Page 417
14.5 Final Remarks......Page 419
References......Page 421
Abstract......Page 427
15.1 Introduction......Page 428
15.2 Geneva Call’s Approach......Page 432
15.2.1 Geneva Call and Armed Non-State Actors: How Does Initial Engagement Take Place?......Page 434
15.2.2 Geneva Call’s Deeds of Commitment......Page 436
15.2.3 Geneva Call’s Monitoring Activities......Page 439
15.3 Some Selected Challenges and Achievements Related to the Protection of Children in Non-International Armed Conflicts......Page 441
15.3.1 The KNU/KNLA: How Organizational Issues May Affect Compliance......Page 442
15.3.2 The APCLS: How Capacity (or Lack Thereof) May Affect Compliance......Page 445
15.4 Concluding Remarks: The Importance of Geneva Call Engaging ANSAs......Page 447
References......Page 448

Citation preview

International Humanitarian Law and Non-State Actors Debates, Law and Practice

Ezequiel Heffes Marcos D. Kotlik Manuel J. Ventura Editors

International Humanitarian Law and Non-State Actors

Ezequiel Heffes Marcos D. Kotlik Manuel J. Ventura •

•

Editors

International Humanitarian Law and Non-State Actors Debates, Law and Practice

123

Editors Ezequiel Heffes Policy and Legal Unit Geneva Call Chêne-Bougeries, Geneva, Switzerland

Marcos D. Kotlik Observatory of International Humanitarian Law, School of Law University of Buenos Aires Buenos Aires, Argentina

Manuel J. Ventura International Residual Mechanism for Criminal Tribunals Arusha, Tanzania and School of Law Western Sydney University

Sydney, Australia

ISBN 978-94-6265-338-2 ISBN 978-94-6265-339-9 https://doi.org/10.1007/978-94-6265-339-9

(eBook)

Published by T.M.C. ASSER PRESS, The Hague, The Netherlands www.asserpress.nl Produced and distributed for T.M.C. ASSER PRESS by Springer-Verlag Berlin Heidelberg © T.M.C. ASSER PRESS and the authors 2020 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. This T.M.C. ASSER PRESS imprint is published by the registered company Springer-Verlag GmbH, DE part of Springer Nature. The registered company address is: Heidelberger Platz 3, 14197 Berlin, Germany

Foreword

The chapters collected in this volume go beyond the doctrinal debates over whether non-state actors have personality, are subjects or objects of international law, or indeed whether or not they are bound by international obligations. The authors draw on their personal experiences to explain how non-state actors adjust their behaviour in light of international law, how such actors are contributing to the development of international law, and what sort of policies should be adopted towards non-state actors in order to ensure a better framework for the protection of those affected. An expansive definition of the term non-state actor allows the authors to cover the contemporary interactions between a multiplicity of ‘players’: the ICRC, the United Nations, private military companies, Geneva Call and the rebel groups themselves. There is a focus on the development of the UN through international courts and human rights bodies, but the book does not lose sight of the practices that are developing—often in parallel to the legal doctrine. Out of this examination of law and practice, the authors manage to point towards the policies that ought to be considered. Some of these require no changes to the legal framework—only new ways of seeing the issues—while others require not just imagination but concrete steps to realise increased possibilities for holding accountable those who transgress fundamental humanitarian and human rights norms. This collection will be of interest to anyone seeking new ways to enhance the rule of law in armed conflict. Geneva, Switzerland

Andrew Clapham Professor of International Law at the Graduate Institute of International and Development Studies in Geneva

v

Preface

In 2016, at the time of this book’s conception, all three of us were working within the non-State actor (NSA) field but held quite different positions. Ezequiel was a delegate at the International Committee of the Red Cross (ICRC) in Lashkar Gah, Helmand Province, Afghanistan; Marcos was a researcher at the School of Law of the University of Buenos Aires in Argentina; and Manuel was an Associate Legal Officer in Chambers at the Special Tribunal for Lebanon in The Hague, The Netherlands. Through several exchanges related to our work and academic activities, we realized that no in-depth examination had been undertaken concerning the roles of different NSAs within the context of armed conflicts and international humanitarian law (IHL). We noticed that—oddly—no book dedicated to this particular subject had been published. At the time, most studies focused on specific entities without necessarily placing them within a broader mosaic where a variety of NSAs interact among themselves and States. Because of our work, we had the opportunity to engage directly with non-State armed groups (NSAGs), non-governmental organizations (NGOs), international criminal tribunals, private military security companies, local and religious leaders and academic institutions. Each was, in one way or another, having an impact on how IHL was interpreted, respected or deliberately disregarded and ignored. Attempting to understand these dynamics was an important task that we felt compelled to undertake. This is why this book was conceived as an edited collection: a discussion of various NSAs acting within IHL required the involvement of professionals with experience in studying and analysing those NSAs’ practices and interactions. As co-editors, we are grateful to all the authors who are published in this book for supporting and becoming a part of a project launched by three unknown individuals. The authors bring novel and alternative perspectives on how IHL is currently conceived, and they thoughtfully (and patiently) engaged in dialogue at every stage of the editing process. The book also profited from the help and encouragement of a number of people. Special thanks are due to Emiliano Buis, for his long-lasting and invaluable help at the School of Law of the University of Buenos Aires. Neither Ezequiel nor Marcos would be co-editors of this book without Emiliano opening the IHL field for them. The Jean Pictet family also played a vii

viii

Preface

crucial role in this regard, as it gave us the opportunity to interact with some of the authors a few years before this book was actually conceived. Much of the dynamics identified in this volume are influenced by the teachings of, and discussions with, Prof. Andrew Clapham, who previously taught Ezequiel and Manuel. His views on international law and how it is constructed and influenced by different stakeholders have served to shape the path of this project. Special thanks are also due to Sabrina Frydman, who joined the project in its final stage and went through hundreds of footnotes and references, helping us to conform the text to the applicable style guide and showing us the light at the end of the tunnel. Her eye for detail was an invaluable contribution, one that any reader of this book will surely appreciate. Additionally, we are grateful to Frank Bakker and Kiki van Gurp at the T.M.C. Asser Institute for their advice and support throughout this process from start to finish. We particularly appreciate the trust they placed on three young professionals who did not previously have a book to their names. Finally, we would like to thank you—the readers—for taking the time to consider, think and critically engage with the opinions and ideas contained in the following pages. We hope that they will contribute positively to your academic and/or professional endeavours and to the marketplace of ideas generally. If our book manages to accomplish this, even in a small way, then the effort we have put into this project will have been more than worth it. At the time these acknowledgements were written, all three of us are still working within the NSA field but now hold different positions. Ezequiel is a legal adviser at Geneva Call—an NGO that engages NSAGs on humanitarian norms—in Geneva, Switzerland; Marcos is a Judicial Fellow at the International Court of Justice in The Hague, The Netherlands; and Manuel is an Associate Legal Officer in the Office of the Prosecutor at the International Residual Mechanism for Criminal Tribunals in Arusha, Tanzania. Although our professional paths have moved from one place to another, the influence of NSAs on our own personal lives can be clearly identified. Geneva, Switzerland The Hague, The Netherlands Arusha, Tanzania June 2019

Ezequiel Heffes Marcos D. Kotlik Manuel J. Ventura

Contents

1

Introduction: The Functions and Interactions of Non-State Actors in the Realm of International Humanitarian Law . . . . . . . . Ezequiel Heffes, Marcos D. Kotlik and Manuel J. Ventura

Part I 2

3

4

1

The Proliferation of NSAs Involved in Armed Conflict

What Are ‘Armed Non-State Actors’? A Legal and Semantic Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Annyssa Bellal

21

Beyond Banning Mercenaries: The Use of Private Military and Security Companies Under IHL . . . . . . . . . . . . . . . . . . . . . . . . Martina Gasser and Mareva Malzacher

47

The Legal Protection of Personnel of United Nations Peacekeeping Operations in Times of NIAC . . . . . . . . . . . . . . . . . . Keiichiro Okimoto

79

Part II

The Regulation of NSAs Involved in Armed Conflict Beyond IHL

5

Chemical Weapons and Non-State Actors . . . . . . . . . . . . . . . . . . . . 115 Yasmin Naqvi and Olufemi Elias

6

Automatic Criminal Liability for Unlawful Confinement (Imprisonment) as a War Crime? A Potential Consequence of Denying Non-State Armed Groups the Power to Detain in NIACs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Manuel J. Ventura

7

Detention by Non-State Armed Groups in NIACs: IHL, International Human Rights Law and the Question of the Right Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169 Frédéric Mégret ix

x

Contents

8

Human Rights Obligations of Non-State Armed Groups: An Assessment Based on Recent Practice . . . . . . . . . . . . . . . . . . . . 195 Jean-Marie Henckaerts and Cornelius Wiesener

9

Post-Conflict Justice: Extending International Criminal Responsibility to Non-State Entities . . . . . . . . . . . . . . . . . . . . . . . . 229 Ilya Nuzov

Part III

The Development of IHL by NSAs

10 Uses of IHL by the International Court of Justice: A Critical Approach Towards Its Role in the International Legal Arena . . . . 265 Brian E. Frenkel, Sebastián A. Green Martínez and Nahuel Maisley 11 The Development of IHL by Human Rights Bodies . . . . . . . . . . . . 297 Gerd Oberleitner 12 Targeting Members of Non-State Armed Groups in NIACs: An Attempt to Reconcile International Human Rights Law with IHL’s (De Facto) Status-Based Targeting . . . . . . . . . . . . . . . . 321 Nader I. Diab Part IV

The Emergence of Horizontal Interactions Between NSAs

13 Generating Respect for the Law by Non-State Armed Groups: The ICRC’s Role and Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . 353 Anne Quintin and Marie-Louise Tougas 14 Compliance with Humanitarian Rules on the Protection of Children by Non-State Armed Groups: The UN’s Managerial Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 387 Marcos D. Kotlik 15 Non-State Actors Engaging Non-State Actors: The Experience of Geneva Call in NIACs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427 Ezequiel Heffes

Editors and Contributors

About the Editors Ezequiel Heffes is a Thematic Legal Adviser at Geneva Call, a humanitarian NGO that promotes respect of humanitarian norms by armed non-state actors. Ezequiel holds an LL.M. in IHL and Human Rights from the Geneva Academy, and a law degree from the University of Buenos Aires, School of Law. Prior to joining Geneva Call, he worked as a field and protection delegate and as a head of office for the ICRC in Colombia, Afghanistan and the Democratic Republic of Congo. He has participated in different research projects and has published various articles and book chapters on different international law issues. He is currently working on a monograph on detention by non-state armed groups under international law with Cambridge University Press. Ezequiel is a co-editor of the Armed Groups and International Law blog. Marcos D. Kotlik is the Academic Coordinator of the Observatory of International Humanitarian Law at the University of Buenos Aires, School of Law (UBA), where he is also a Lecturer in International Law (on academic leave). He was a Judicial Fellow at the International Court of Justice for the 2018–2019 period. He previously worked as an attorney for the Center for Legal and Social Studies (CELS), a human rights organisation based in Buenos Aires, and as a consultant for the Institute of Public Policies on Human Rights of MERCOSUR and other regional organisations. He holds a Law Degree and a Masters in International Relations from UBA, as well as an LLM from the University of Michigan Law School. Manuel J. Ventura is an Associate Legal Officer in the Office of the Prosecutor (OTP) at the International Residual Mechanism for Criminal Tribunals, an Adjunct Fellow at the School of Law at Western Sydney University and is a Director of The Peace and Justice Initiative. He has previously served in Chambers at the Special Tribunal for Lebanon (STL), in the OTP at the International Criminal Tribunal for the former Yugoslavia, in Defence at the International Criminal Court, and for

xi

xii

Editors and Contributors

Chief Justice Mogoeng Mogoeng at the Constitutional Court of South Africa and President Antonio Cassese at the STL. He is an editor of Modes of Liability in International Criminal Law (Cambridge University Press, 2019) and publishes regularly on topics related to international criminal law and justice.

Contributors* Annyssa Bellal Geneva Academy of International Humanitarian Law and Human Rights, Geneva, Switzerland Nader I. Diab Brussels, Belgium Olufemi Elias Formerly Organisation for the Prohibition of Chemical Weapons, The Hague, The Netherlands Brian E. Frenkel School of Law, University of Buenos Aires, Buenos Aires, Argentina Martina Gasser Swiss Federal Department of Foreign Affairs (FDFA), Bern, Switzerland Sebastián A. Green Martínez School of Law, University of Buenos Aires, Buenos Aires, Argentina Ezequiel Heffes Geneva Call, Geneva, Switzerland Jean-Marie Henckaerts ICRC, Geneva, Switzerland Marcos D. Kotlik School of Law, University of Buenos Aires, Buenos Aires, Argentina Nahuel Maisley School of Law, University of Buenos Aires, Buenos Aires, Argentina Mareva Malzacher Swiss Federal Department of Foreign Affairs (FDFA), Bern, Switzerland Frédéric Mégret Faculty of Law, McGill University, Montreal, Canada Yasmin Naqvi UN International Residual Mechanism for Criminal Tribunals, The Hague, The Netherlands Ilya Nuzov International Federation for Human Rights, Paris, France Gerd Oberleitner Institute of International Law and International Relations, University of Graz, Graz, Austria Keiichiro Okimoto Office of the Legal Counsel, Office of Legal Affairs, United Nations, New York, USA

* The full information on each contributor is included at the end of the chapter they contributed to.

Editors and Contributors

xiii

Anne Quintin ICRC, Geneva, Switzerland Marie-Louise Tougas UNSC, Montevideo, Uruguay Manuel J. Ventura International Residual Mechanism for Criminal Tribunals, Arusha, Tanzania; School of Law, Western Sydney University, Sydney, Australia Cornelius Wiesener iCourts, KU JUR, Copenhagen, Denmark

Chapter 1

Introduction: The Functions and Interactions of Non-State Actors in the Realm of International Humanitarian Law Ezequiel Heffes, Marcos D. Kotlik and Manuel J. Ventura

Contents 1.1 A Shift in Focus ................................................................................................................ 1.2 Non-State Actors as an Analytical Category .................................................................... 1.3 Non-State Actors in IHL Dynamics.................................................................................. 1.3.1 The Proliferation of NSAs That Are Involved in Armed Conflict ....................... 1.3.2 The Regulation of NSAs Involved in Armed Conflict Beyond IHL.................... 1.3.3 The Development of IHL by NSAs....................................................................... 1.3.4 The Emergence of Horizontal Interactions Between NSAs .................................. 1.4 Moving Forward: Law, Practice, Policy and NSAs ......................................................... References ..................................................................................................................................

2 4 6 8 9 10 11 12 13

The views expressed herein are those of the authors alone and do not necessarily reflect the views of the organisations with which they are affiliated, in particular the International Residual Mechanism for Criminal Tribunals or the United Nations in general. E. Heffes (&) Geneva Call, Geneva, Switzerland e-mail: [email protected] M. D. Kotlik School of Law, University of Buenos Aires, Buenos Aires, Argentina e-mail: [email protected] M. J. Ventura Office of the Prosecutor, International Residual Mechanism for Criminal Tribunals, Arusha, Tanzania e-mail: [email protected] M. J. Ventura School of Law, Western Sydney University, Sydney, Australia © T.M.C. ASSER PRESS and the authors 2020 E. Heffes et al. (eds.), International Humanitarian Law and Non-State Actors, https://doi.org/10.1007/978-94-6265-339-9_1

1

2

1.1

E. Heffes et al.

A Shift in Focus

The term ‘international law’ was coined in 1789 by Jeremy Bentham, eventually becoming the predominant expression used by specialized literature, in lieu of ‘the law of nations’ or ‘droit des gens’, which were translations of the Latin term employed by Hugo Grotius: ‘ius gentium’. Although these terms do not necessarily convey that this body of law exclusively regulates relations between States, with the emergence of the nation-State, international law became increasingly focused on inter-State relations, thus excluding – for the most part – non-State entities.1 This book aims at challenging such an understanding of international law, suggesting that it is necessary to shift the focus beyond States, in order to encompass the various types of functions and interactions in which every entity participates, and that constitute international decision-making processes. It does so by concentrating on international humanitarian law (IHL), and reflecting on current legal, policy, and practical issues that concern non-State actors (NSAs) in and around situations of armed conflict. International law-making and law-enforcement dynamics currently involve an extraordinary number of NSAs.2 The interactions between States and NSAs, or exclusively between the latter, have become increasingly multilayered, taking place in many settings with different degrees of (in)formality. Individuals, the ultimate participants in any legal process, interact with increasing frequency and intensity across State borders in a variety of forms.3 Likewise, international organizations, having proliferated rapidly throughout the twentieth century, often participate in decision making, and help to shape the attitudes and behaviours of other actors. Moreover, they provide spaces for the creation of networks where interactions among NSAs grow in quantity and complexity.4 Other NSAs, such as non-governmental organizations (NGOs), corporations and non-State armed groups (NSAGs), have become transnational with respect to their membership, goals, areas of activity, and impact. The intricacies of these dynamics are reflected in the exponential increase in the scholarly study of NSAs from different perspectives.5 While it is nowadays uncontroversial that these entities play essential roles in the international sphere, the specific traits of their participation in certain areas of international law remain unclear or insufficiently explored.

1

Crawford and Koskenniemi 2012, p 7. In the concluding remarks to a 2011 volume that brought together different perspectives on NSAs in international law, Jean d’Aspremont affirmed that ‘there is not a single area of international law where law-making and law-enforcement – including compliance monitoring – has not been affected by these [non-State] actors’. d’Aspremont 2011a, p 428. 3 Chen 2015, pp 3–4. 4 Ibid., p 4. 5 See, among many others, Clapham 2006; Noortmann et al. 2015a; Cismas 2014; Noortmann and Ryngaert 2010; d’Aspremont 2011b; Bianchi 2009b; and Alston 2005. 2

1 Introduction: The Functions and Interactions …

3

IHL, in particular, has long recognized the roles that multiple NSAs play – indeed, it is their activities in the context of armed conflict that consistently and most prominently present challenges for that area of law. In this respect, while in recent times purely inter-State armed conflicts have declined in frequency, those involving NSAGs have increased and are now in the majority.6 Consequently, NSAGs, individuals, the United Nations (UN) through its different agencies, the International Committee of the Red Cross (ICRC), and humanitarian NGOs, among others, interact among themselves and with States on a daily basis and for many different reasons. These interactions are often related to the application, interpretation, disregard or reinforcement of IHL, and even to the creation of new rules, thus affecting the lives of hundreds of thousands of people who suffer the consequences of hostilities around the world. This book explores and engages with these dynamics, highlighting the importance of thoroughly assessing how NSAs’ roles may impact the resolution of practical and theoretical problems in the realm of IHL. By addressing prominent debates in the field, each contribution allows for the reconfiguration of strategies to deal with specific issues and compels our attention towards the possible parts each actor may play in that reconfiguration. As Iain Scobbie has explained, ‘international law does not exist in an intellectual vacuum,’7 and the way we understand IHL and what it does, or should do, is based on a set of ‘theoretical assumptions and presuppositions’.8 When moving away from the traditional State-centric approach, these assumptions and presuppositions are questioned. Focusing on the functions performed by NSAs and on their interactions, even if (and especially when) States are not involved, inevitably entails understanding international law – how it is perceived, developed and applied – as more than a simple body of rules. Otherwise, international law, and particularly IHL, would be ‘unable to contribute to, and cope with, a changing political world’.9 In our view, international law should rather be understood as ‘a continuing process of authoritative decisions [which] rejects the notion of law merely as the impartial application of rules’.10 Instead, it is ‘the entire decision-making process, and not just the reference to the trend of past decisions which are termed “rules”’.11 Based on this understanding of international law, this book shows that there are different ways in which we can think about IHL today. It is an endeavour that underscores the agency of NSAs and invites us to re-examine the distinction between State and non-State activities altogether. Traditional approaches to international law, with their fixation on States as gate-keepers, have failed to fully grasp the challenges related to the application of IHL, neglecting that its implementation

6

Bellal 2018, p 17; ICRC 2018, pp 13–14. Scobbie 2014, p 53. 8 Ibid. 9 Higgins 1994, p 3. 10 Ibid., p 2. 11 Ibid. 7

4

E. Heffes et al.

often depends upon a variety of NSAs. A shift in focus, that is, the development of a new narrative, may help to meet the challenges posed by NSAs before, during, and after hostilities.

1.2

Non-State Actors as an Analytical Category

Since the 17th century, States have played a predominant role in the great majority of global legal decision-making processes.12 This is reflected in legal scholarship, where issues related to NSAs’ nature, place and regulation often remain underexplored. In fact, the modern notion of ‘international legal personality’ – a derivation of the Westphalian State – is the framework that is often employed to examine NSAs’ relevance in the international legal system.13 That (still) dominant notion carries a prescriptive value so powerful that it can deny any legal relevance whatsoever to certain international phenomena involving NSAs,14 thus preserving a static and aseptic understanding of international law, and rejecting its consideration as a social construct. ‘Quite understandably’, Bianchi asserts, States ‘seek to keep under control the legal processes that take place in an international community in which they are still deemed to be the main actors’.15 To what extent the growing intervention of NSAs in international dynamics is capable of challenging such control still remains unclear. Unsurprisingly, the traditional units of analysis employed by international law and international relations do not include NSAs, which constitute a practically undefined category encompassing various participants in the international sphere.16 Until recently, even the notion of ‘actors’ was ignored in international legal discourse and confined to international relations and political sciences.17 Thus, NSAs were consistently excluded from studies and discourses in international law for a long time.18 However, and as stated earlier, it is now widely recognized that international legal processes involve a large number of NSAs. In recent years, the role and status of NSAs have progressively become mainstream concerns both in

12

Chen 2015, p 25; Klabbers 2003, pp 354–357; Cismas 2014, p 72. As Cassese has also put it, States are ‘the backbone of the community’. Cassese 2005, p 71. 13 See Bianchi 2009a, p xii; Woodward 2010, p 109. 14 See Lauterpacht 1970, pp 147–148; Portmann 2010, p 1; Bhuta 2012, p 62; Bianchi 2009a, p xiii; Nijman 2010, p 102. 15 Bianchi 1997, p 180. 16 Noortmann et al. 2015b, p 2. Bianchi has also concluded that ‘there is no such thing in the general theory of international law’ when referring to NSAs. Bianchi 2009a, p xii. 17 See Ben-Ari 2012, pp 3–5. 18 Noortmann 2010, p 154.

1 Introduction: The Functions and Interactions …

5

international relations19 and in international law. Within the latter, while some authors have adopted a broad approach,20 many others have focused either on a given branch, such as international human rights law21 or international environmental law;22 on concrete actors;23 or on specific processes, such as norm-creation24 or accountability mechanisms;25 often combining these criteria. But the term ‘NSA’ has not necessarily been employed with the same meaning or scope in those studies – there seems to be no uniform definition of what constitutes a NSA, nor an agreed upon methodology on how to identify or classify them.26 As a starting point, the entities whose activities and legal regulation are analyzed in this book are different from States.27 Indeed, the use of the term ‘State’ within ‘NSAs’, that is, defining such entities in terms of what they are not, introduces a link between all other actors and States.28 At the same time, international law does not establish any a priori limitation on what constitutes a NSA, as long as they are not considered to be States. Without any clear and consistent definition of what a NSA is under international law, a diverse range of entities may be included within that category. Within the context of IHL, a variety of actors can be of relevance, such as NSAGs, private military and security companies (PMSC), humanitarian and human rights NGOs, international organizations and international criminal tribunals, local communities and religious leaders. Of course, specific features that allow to distinguish each one of these entities from States and from each other may have

19

Armstrong et al. 2011; Arts et al. 2001; Edwards 2011; Macdonald 2008; Slaughter 2004. For a historical account of different theoretical perspectives on NSAs in the field of international relations since the 1970s, see Kornprobst 2015. 20 Bianchi 2009b; Ben Achour and Laghmani 2007; Bhuta 2012; d’Aspremont 2011b; Hofmann 1999; Klabbers 2003; McCorquodale 2004; Noortmann and Ryngaert 2010; Noortmann et al. 2015a; Teubner 1997. 21 Alston 2005; Bianchi 1997; Clapham 2006. 22 Arts 1998; Raustiala 1997; Osofsky 2012. 23 For instance, on civil society actors, see Ben-Ari 2012; Ben-Ari 2013; Charnovitz 2006; Leroux 2009; Lindblom 2005; Rossi 2010; Szazi 2012; on the individual, McCorquodale 2006. On the United Nations and other international organizations, see Rittberger 2001; Tallberg et al. 2013; van Boven 1997. On religious actors, see Cismas 2014. 24 Boyle and Chinkin 2007, pp 46–52; Álvarez 2002; Álvarez 2005; Bailliet 2012; Roberts and Sivakumaran 2012; Lowe 2001. 25 Bluemel 2005. 26 As explained by d’Aspremont, ‘[a]s far as non-state actors are concerned … it is not always possible to ascertain the existence of non-state actors as they may be elusive. They may also be extremely short-lived’. d’Aspremont 2011a, p 427. 27 Article 1 of the Montevideo Convention includes the ‘basic’ criteria that are traditionally used to determine statehood: (i) a defined territory; (ii) a permanent population; (iii) a government; and (iv) the capacity to enter into relations with other States. Montevideo Convention on the Rights and Duties of States, opened for signature 26 December 1933, 165 LNTS 19, entered into force 26 December 1934, Article 1. 28 Cismas 2014, p 72.

6

E. Heffes et al.

varying degrees of importance as well. Nonetheless, the focus of this book is not on those specific features that help to identify or classify NSAs, but rather on whether and how certain entities that are not States can affect, and are affected by, IHL. More specifically, what is essential for the analyses contained in this book are the functions that NSAs perform in relation to armed conflicts. In this sense, the different chapters concern actors that are the dramatis personae (the characters of the play) on the IHL scene.29 We therefore consider the notion of ‘NSAs’ as a broad category that encompasses individuals or groups of individuals that either by themselves or through specific institutions operate within the framework of established and evolving practices and norms in the realm of international law (or, for the purposes of this book, of IHL).30 Of course, establishing such parameters means that a myriad of NSAs in the international arena can be relevant to this book, depending on their actions and on the perceptions and reactions of other actors. But this volume does not intend to examine each one of those players, and it should indeed be noted that some entities that are undoubtedly important – such as transnational companies, international criminal tribunals, peoples, local communities and religious institutions – are not dealt with. Instead, it is hoped that the framework of analysis employed here will lead to future research on their actions and interactions as they concern IHL-related dynamics.

1.3

Non-State Actors in IHL Dynamics

That NSAs have significant roles in IHL dynamics has been long recognized. On the one hand, the creation of the ICRC entailed a significant modification of the way in which IHL is developed and its implementation pursued.31 On the other hand, the potential recognition of belligerency vis-à-vis NSAGs opened the door for the application of contemporary IHL rules to NSAGs involved in hostilities32—a Although this is taken from Cassese, who claimed that States and armed groups are ‘traditional’ subjects of the international community, ‘in the sense that they have been the dramatis personae (the characters of the play) on the international scene since its inception’, we use it in a different sense in an attempt to move away from the theory of ‘subjects’ and ‘objects’. See in any case, Cassese 2005, p 71. 30 In its final report on NSAs, the International Law Association defined them as ‘legally recognized and organised entities that are not comprised of nor governed or controlled by States nor groups of States and that actually perform functions in the international arena that have real or potential effects on international law’. International Law Association 2016, para 19. The definition adopted here is broader, since it does not require legal recognition nor organisation, nor does it exclude a priori entities that may have closer relationships with States. Focus is rather placed on the functions performed by those entities. 31 For a recent study on this issue, see Geiss et al. 2017. 32 Under this doctrine, NSAGs were entitled to a degree of recognition as holders of international legal obligations. As Sivakumaran has explained, ‘[r]ecognition of belligerency on the part of the 29

1 Introduction: The Functions and Interactions …

7

process that was radically transformed with the inclusion of Common Article 3 in the 1949 Geneva Conventions and subsequent developments in treaty and customary law. Nowadays, many other NSAs carry out actions in the context of armed conflicts, and their interactions with States and among each other have become increasingly multilayered. In recent years, studies on the role of the ICRC,33 NGOs,34 the UN,35 NSAGs,36 national liberation movements and the peoples they represent,37 PMSCs,38 and religious actors39 have proliferated. While they are of course of great value, they mostly tackle each actor in isolation; and as the constraints imposed by a State-oriented approach to international law continue to operate, depictions of IHL in these contexts have become rather compartmentalized. Since a comprehensive study of NSAs within IHL is lacking, this volume intends to address a gap in the literature and to contribute to an academic discourse in that direction. The essays included in this book identify important challenges faced by contemporary IHL in relation to NSAs – some well-known and others often overlooked – and suggest ways to address regulatory gaps and theoretical conundrums. Some chapters predominantly address the direct application of IHL to NSAs, which serves to highlight that IHL can be seen as a communicative tool that authoritatively regulates multiple humanitarian interactions. Yet, beyond the direct and vertical relationship between the law and its addressees, each contribution allows to appreciate other types of relationships: within the realm of IHL, NSAs are not only law-takers, but also law-shapers, law-influencers, law-interpreters, law-makers, law-enforcers, or a combination thereof.40 Indeed, if IHL-dynamics are examined as a continuous process of authoritative decision-making, States continue to play an important role, but they are not involved in every interaction, nor can they claim to have a domaine reservé to perform some functions. This exploration of the relationship between IHL and NSAs challenges the traditional ‘subject-object’ dichotomy, thus painting a much more complex picture. In this section, we identify four phenomena of contemporary IHL that, in our view, help to better understand the big picture as it relates to NSAs: (i) the parent state led to the violence being regulated by the law of war, while recognition on the part of other states led to application of the law of neutrality’. Sivakumaran 2012, p 10. 33 See Rona 2004; Geiss et al. 2017. 34 See Anderson 2000; Barrat 2014; and Cameron et al. 1998. See also Bradley 2016 not only on ICRC but also addressing the role of the UN High Commissioner for Refugees. 35 See Verdirame 2011; Warbrick and Lowe 1994; and Lowe et al. 2010. See also Schabas 2006, focusing on UN criminal tribunals. 36 See Paust 2015; Sivakumaran 2011; Roberts and Sivakumaran 2012; Sassòli 2010; Daboné 2012; Weinstein 2007; Rodenhäuser 2018; Fortin 2017; Murray 2016; and Zegveld 2002. 37 See Higgins 2010; Wilson 1990. 38 See Cameron and Chetail 2013; Tonkin 2011; Entenza 2016; Cottier 2006. 39 See Cismas 2014. 40 See generally Noortmann and Ryngaert 2010.

8

E. Heffes et al.

proliferation of NSAs that are involved in armed conflicts; (ii) the expansion of the international rules that regulate the conduct of NSAs, even beyond IHL; (iii) the development of IHL by NSAs; and (iv) the emergence of horizontal relationships between NSAs. These phenomena inform the structure of this book. Three additional issues should be noted. First, the authors of the different chapters were free to choose any approach they deemed fit to address the role of the respective NSA(s) they dealt with. At the very beginning of the process, we understood that having individuals who belong to different professional or academic spheres, a few of them even working for some of the actors analyzed, and reflecting on these issues from diverse perspectives, would provide an added value to current discussions on the role of NSAs in the IHL realm. Second, the identification of the aforementioned phenomena is an intellectual exercise that, as editors of this book, we felt compelled to do as we read, reviewed, commented and edited each contribution we received. From a methodological standpoint, we do not aim at exhausting the avenues available to explore IHL dynamics and the part played by NSAs therein, but the selected phenomena do embody, we believe, some of the most important ideas or themes explored in the following chapters. Third, we openly acknowledge that these identified phenomena deserve a much deeper academic exploration, one that goes beyond the confines of this book. Thus, while each chapter includes a series of topical discussions touching upon each of these phenomena to different degrees, there are undoubtedly many other perspectives that have been left out or that are underdeveloped. We hope that this book serves as a catalyst to take these conversations further.

1.3.1

The Proliferation of NSAs That Are Involved in Armed Conflict

It is uncontroversial that NSAs involved in armed conflict have proliferated. As previously explained, this is not only reflected by the number of NSAGs that are parties to those conflicts, but also by the participation of a variety of other entities. This phenomenon undoubtedly affects the development of the law itself. Indeed, each of the three chapters included in Part I deal with different actors and demonstrate that whatever the typology of NSAs that one uses, it is a choice that has important normative implications. The categories employed to designate NSAs and their activities directly affect how we construct and understand their relationship with IHL, and they may even influence the interpretation of existing rules and shape the development of new ones.

1 Introduction: The Functions and Interactions …

9

In the first contribution to this book, Annyssa Bellal (Chap. 2) unpacks the term ‘armed non-state actors’ (ANSAs).41 Recognizing that definitions or classifications inform what legal framework applies to a particular entity or to a specific behaviour, she identifies that ‘ANSAs’ lack a definition in international law. Thus, she conducts a critical analysis of the term’s constitutive elements, highlighting how they each have normative consequences that we need to be aware of. Martina Gasser and Mareva Malzacher (Chap. 3) also focus on a particular category of NSAs, namely, PMSCs, but employing a slightly different approach. After developing a typology of activities carried out by PMSCs and explaining which IHL rules apply to them, they highlight the need to further advance the existing legal framework so as to better regulate these companies’ traits and actions. The current framework, in their view, would profit from soft law initiatives and national legislation, combining State control and PMSCs’ self-regulation. Keiichiro Okimoto (Chap. 4) discusses the protection of personnel of UN peacekeeping operations in times of non-international armed conflict (NIAC) under IHL and the 1994 Convention on the Safety of United Nations and Associated Personnel. In light of the rising number of such operations and the various types of mandates they are entrusted with, he describes some uncertainties as to the extent of the legal protection of UN peacekeeping personnel.

1.3.2

The Regulation of NSAs Involved in Armed Conflict Beyond IHL

The chapters included in Part II explore the extent and scope of international rules applicable to NSAs or to a sub-category of them, namely, NSAGs. They allow us to observe the direct, vertical relationship between IHL and NSAs, and help us to reflect on the practical and theoretical problems arising therein. Indeed, the law has evolved in parallel to the growing importance of NSAs in situations of armed conflict, since it has become necessary to regulate unforeseen scenarios implicating these (and other unforeseen) entities. In this vein, these contributions show ways in which the relationship between NSAs and the law has gone beyond the realm of IHL, or argue why that should be the case. Yasmin Naqvi and Olufemi Elias (Chap. 5) examine the ban on the use of chemical weapons at any time (even beyond armed conflict) and whether it is binding for all NSAs. Their conclusion that NSAs are bound by the said prohibition by virtue of international customary law demonstrates how the behaviour of these

Throughout this book, the term ‘non-State armed group’ (NSAG) has been predominantly used to refer to the entities often considered as ANSAs. As Bellal’s chapter notes, however, ‘ANSA’ may be employed in a broader sense, comprising actors that would not usually be considered to be NSAGs.

41

10

E. Heffes et al.

entities transcends the realm governed by IHL, potentially expanding their direct relationship with international law in multiple ways. As part of larger debates on the interplay between IHL and international law generally, Manuel J. Ventura (Chap. 6) and Frédéric Mégret (Chap. 7) focus on detentions carried out by NSAGs in NIACs. Adopting an international criminal law perspective, Ventura examines how the assumption that NSAGs do not have the power to detain in NIACs can lead to any detention they carry out being considered as the war crime of unlawful imprisonment (confinement), and explains the negative consequences this may have upon the practice of detention by NSAGs. Mégret explores whether IHL or international human rights law (IHRL) may confer upon NSAGs a ‘right authority’ to detain, a question that admittedly strikes at the heart of NSAGs’ status and legitimacy. While both chapters suggest that such detentions could be regulated by IHL (and IHRL, in the case of Mégret), they also highlight practical and theoretical difficulties that need to be addressed. One of the core discussions surrounding NSAGs over the last decades is tackled by Jean-Marie Henckaerts and Cornelius Wiesener (Chap. 8): whether and to what extent NSAGs can be bound by IHRL. They conclude that NSAGs that have control over territory allowing them to exercise government-like functions have human rights obligations (or at least responsibilities) under customary international law, and arguably under an evolutionary interpretation of treaty law as well. In their view, this reduces the protection gap that excluding the application of IHRL to NSAGs would entail, but they also suggest that further research and political will is necessary to address the still prevalent accountability gap. Along these lines, Ilya Nuzov (Chap. 9) explores the extension of international criminal jurisdiction to NSAs as such. He argues that the liability of collective entities has become a general principle of international law and that operationalizing such responsibility would better serve the goals of transitional justice.

1.3.3

The Development of IHL by NSAs

Part III concerns how NSAs partake in the development of IHL. Here, it would have been possible to examine the role of various actors, for example, that of the ICRC in promoting the conclusion of international treaties and exploring the existence of customary rules, that of NGOs advocating for new rules, or that of NSAGs participating in formal and informal instances of norm-creation. The chapters we have selected for this part, however, focus on judicial and quasi-judicial bodies as NSAs. Even when created by States, these institutions are quite distinct, they carry out their mandates independently, and have a large degree of autonomy. They have, in fact, a life of their own. The way these bodies have interpreted and applied IHL rules has had an enormous influence on how we understand IHL, how other actors (including States) apply IHL, and how IHL has continued to develop and evolve. Brian Frenkel, Sebastián Green Martínez and Nahuel Maisley (Chap. 10) assess the role of the International Court of Justice (ICJ) when dealing with IHL, taking

1 Introduction: The Functions and Interactions …

11

into account its institutional, legal and historical context. They demonstrate how the ICJ has oscillated between specificity and vagueness, and between activism and restraint. They further provide solid arguments that this is a result of the ICJ’s attempt to strike a balance between its function as an adjudicator of disputes and as an agent for the promotion of international peace and security. The role of international human rights bodies in the development of IHL is examined by Gerd Oberleitner (Chap. 11). His chapter complements the theoretical discussion previously introduced by Henckaerts and Wiesener, as it examines the practice of the UN Human Rights Council, UN human rights treaty bodies, the European Court of Human Rights, the Inter–American Commission and Court of Human Rights, and the African Commission on Human and People’s Rights. In particular, Oberleitner explores how these bodies clarify the interplay between IHRL and IHL and potentially help develop the latter. In his view, even if their practice remains inconclusive and uneven, it is necessary to strengthen human rights bodies so they are better prepared to continue performing that function. After the broad examination conducted by Oberleitner, Nader Diab (Chap. 12) delves deep into a specific and complex issue lying at the heart of IHL: the targeting of members of NSAGs in NIACs. Diab identifies the difficulties that human rights bodies have in considering IHL in situations where the right to life under IHRL is at issue. To deal with this difficult area, he applies the principle of systemic integration in order to offer a ‘blueprint’ for those bodies to find convergence and harmony in the criteria under IHRL and IHL for status-based targeting.

1.3.4

The Emergence of Horizontal Interactions Between NSAs

The functions performed by NSAs do not occur in isolation. When carrying them out, NSAs evidently interact with States and with other NSAs. Indeed, interactions between multiple NSAs exercising different functions do take place with different degrees of formality and specialization, and within diverse deliberate, adjudicative and executive arenas.42 The chapters in Part IV address these horizontal interactions, particularly those aimed at improving compliance with IHL. Anne Quintin and Marie-Louise Tougas (Chap. 13) focus on the ICRC’s engagement with NSAGs in order to promote and ensure respect for IHL. They explain the legal basis of the ICRC’s work, review concrete strategies it has employed to integrate IHL into NSAGs’ practices, and identify legal and material challenges the ICRC has faced. They argue that this type of engagement will remain necessary as long as there are NSAGs involved in armed conflict, explaining that this methodology is deeply ‘rooted in the institution’s mission to protect the lives 42

See McDougal and Reisman 1980, pp 252–253, 269, making this point with regard to the prescribing function in the international sphere.

12

E. Heffes et al.

and dignity of victims of armed conflict and to prevent suffering by promoting and strengthening IHL, which, if respected, provides indispensable protection to those victims’.43 Marcos Kotlik (Chap. 14) explores the UN’s Children Affected by Armed Conflict framework, especially its Monitoring and Reporting Mechanism, as a managerial approach to non-compliance. He illustrates how the UN can provide a space for diverse participants to cooperate (UN agencies, NGOs, State agencies, and NSAGs) in order to ensure compliance with humanitarian rules. This examination allows to reflect on the positive features and the shortcomings of this type of interaction, and of its institutional framing. Finally, Ezequiel Heffes (Chap. 15) provides insights as to the engagement of the NGO Geneva Call with NSAGs in order to promote their respect for humanitarian norms. He explains Geneva Call’s methodology and examines specific cases related to the protection of children in armed conflict with selected NSAGs. Despite facing numerous difficulties, in the short time that Geneva Call has operated, there is little doubt that the interactions with NSAGs it has championed have had a profoundly positive impact.

1.4

Moving Forward: Law, Practice, Policy and NSAs

This introduction serves to explain some of the reasons why it is important to focus on the functions performed by NSAs and the interactions they undertake in the realm of armed conflicts. With these background elements in mind, we do not intend to ignore States and their influence, but to highlight different processes that currently take place which involve many other entities. Although States seem to remain the gate-keepers of the entire international legal system, the phenomena explored in this book should be further studied. In a world where not every ‘actor’ is a ‘subject’, and where the ‘international community’ is no longer the ‘community of States’,44 this book recognizes the need to gradually adjust the conceptual tools employed to interpret the legal aspects of today’s international reality, in accordance with the changes that have taken place and the values that wish to be fostered.45 Indeed, the three elements in the title of this book – debates, law and practice – can be vehicles for such a conceptual adjustment, and they are inextricably linked, either reinforcing, ignoring or resisting each other. The proliferation of NSAs involved in armed conflicts in various capacities has, in practice, brought about numerous challenges. The consequences of this phenomenon are far reaching, and they are reflected in the expansion of applicable rules and the reassessment of NSAs’ roles in shaping and making the law. Accordingly,

43 44 45

Tougas and Quintin, Chap. 13. Ben-Ari 2012, p 6. Bianchi 1997, p 203.

1 Introduction: The Functions and Interactions …

13

decision-makers at several levels can broaden the gap between law, practice and policy, or they may attempt to close it. Indeed, the actors involved and the institutional frameworks concerned project different degrees of authority over particular decision-making processes. For instance, the much-resisted role of NSAGs in law-making processes can be contrasted with the active role of judicial and quasi-judicial institutions in developing IHL through their decisions, a role that may be somewhat controversial but that rarely calls into question their legitimacy. Moreover, as will be observed in the various chapters of this book, the subject-matter at stake may also influence how the relationship between law, practice and policy ultimately plays out. While the expansion of applicable rules from IHL to IHRL has been addressed in multiple arenas and has been discussed in great detail – thereby allowing the exploration of avenues for convergence – , the same is not necessarily true in other cases. For example, where disarmament or collective accountability issues emerge, law and policy appear to be lagging behind practical needs. It is unsurprising, then, that horizontal interactions between NSAs have proliferated. This phenomenon, often overlooked by State-centric approaches, provides the opportunity to think creatively and design new strategies to address the practical problems faced as a result of contemporary armed conflicts. While bringing policy and practice closer together, these interactions are not always fully grasped by the relevant legal framework. In fact, the actors involved sometimes even have to face serious legal challenges, such as the impediments suffered by humanitarian NGOs engaging with NSAGs. Again, where other institutions like the ICRC or UN agencies partake in these interactions, the chances of bridging the gaps between law, practice and policy seem to increase. In order to make sense of these phenomena in the context of IHL, and to understand how they may help us to move forward in terms of law, practice and policy, academia has an important role to play. Just like the distinction between purely academic studies and those with a more pragmatic approach seems to be blurring (at least in the IHL field), so should the line between scholars and practitioners. When thinking about law, practice, policy, and NSAs, abstract discussions about the descriptive and prescriptive categories employed by the discipline should not be disconnected from the actual practice (and practical needs) of the actors involved, in one way or another, in armed conflict. These are not elements to examine in isolation if we are genuinely concerned about the future of IHL.

References Alston P (ed) (2005) Non-State Actors and Human Rights. Oxford University Press, Oxford. Álvarez J (2002) The New Treaty Makers. Boston College International and Comparative Law Review 25:213–234. Álvarez J (2005) International Organizations as Law-makers. Oxford University Press, Oxford/ New York.

14

E. Heffes et al.

Anderson K (2000) The Ottawa Convention Banning Landmines, the Role of International Non-governmental Organizations and the Idea of International Civil Society. European Journal of International Law 11:91–120. Armstrong D et al. (eds) (2011) Civil Society and International Governance. The role of non-state actors in global and regional regulatory frameworks. Routledge, London/New York. Arts B (1998) The Political Influence of Global NGOs: Case Studies on the Biodiversity Conventions. International Books, Utrecht. Arts B et al. (eds) (2001) Non-state Actors in International Relations. Ashgate, Aldershot. Bailliet C (ed) (2012) Non-State Actors, Soft Law and Protective Regimes. From the Margins. Cambridge University Press, Cambridge. Barrat C (2014) Status of NGOs in International Humanitarian Law. Brill Nijhoff, Leiden/Boston. Bellal A (2018) The War Report. Armed Conflicts in 2017. https://www.geneva-academy.ch/ joomlatools-files/docman-files/The%20War%20Report%202017.pdf. Accessed 7 March 2019. Ben Achour R, Laghmani S (eds) (2007) Acteurs non étatiques et droit international. Pedone, Paris. Ben-Ari R (2012) The Normative Position of International Non-Governmental Organizations under International Law. An Analytical Framework. Martinus Nijhoff, Leiden/Boston. Ben-Ari R (2013) The Legal Status of International Non-Governmental Organizations. Analysis of Past and Present Initiatives (1912–2012). Martinus Nijhoff, Leiden/Boston. Bhuta N (2012) The Role International Actors Other Than States Can Play in the New World Order. In: Cassese A (ed) Realizing Utopia. The Future of International Law. Oxford University Press, Oxford, pp 61–75. Bianchi A (1997) Globalization of Human Rights: The Role of Non-state Actors. In: Teubner G (ed) Global Law without a State. Dartmouth, Aldershot, pp 179–211. Bianchi A (2009a) Introduction: Relativizing the Subjects or Subjectivizing the Actors: Is That the Question? In: Bianchi A (ed) Non-state actors in international law. Ashgate, Farnham/ Burlington, pp xi–xxx. Bianchi A (ed.) (2009b) Non-state actors in international law. Ashgate, Farnham/Burlington. Bluemel E (2005) Overcoming NGO Accountability Concerns in International Governance. Brooklyn Journal of International Law 31:139–206. Boyle A, Chinkin C (2007) The Making of International Law. Oxford University Press, Oxford. Bradley M (2016) Protecting Civilians in War. The ICRC, UNHCR, and Their Limitations in Internal Armed Conflicts. Oxford University Press, Oxford. Cameron L, Chetail V (2013) Privatizing War. Private Military and Security Companies under Public International Law. Oxford University Press, Oxford. Cameron M, Lawson, R, Tomlin B (eds) (1998) To Walk Without Fear: The Global Movement to Ban Landmines. Oxford University Press, Oxford. Cassese A (2005) International Law. Oxford University Press, Oxford. Charnovitz S (2006) Nongovernmental Organizations and International Law. American Journal of International Law 100:348–372. Chen L-C (2015) An Introduction to Contemporary International Law. A Policy-Oriented Perspective, 3rd edn. Oxford University Press, Oxford/New York. Cismas I (2014) Religious Actors and International Law. Oxford University Press, Oxford. Clapham A (2006) Human Rights Obligations of Non-State Actors. Oxford University Press, Oxford. Cottier M (2006) Elements for contracting and regulating private security and military companies. International Law Review of the Red Cross 88(863):637–663. Crawford J, Koskenniemi M (2012) Introduction. In: Crawford J, Koskenniemi M (eds) The Cambridge Companion to International Law. Cambridge University Press, Cambridge. d’Aspremont J (2011a) Conclusion: inclusive law-making and law-enforcement processes for an exclusive international legal system. In: d’Aspremont J (ed) Participants in the International Legal System. Multiple perspectives on non-state actors in international law. Routledge, London/New York, pp 425–439.

1 Introduction: The Functions and Interactions …

15

d’Aspremont J (ed) (2011b) Participants in the International Legal System. Multiple perspectives on non-state actors in international law. Routledge, London/New York. Daboné Z (2012) Le droit international public relatif aux groupes armés non étatiques. Schulthess, Zurich. Edwards M (ed) (2011) The Oxford Handbook of Civil Society. Oxford University Press, Oxford. Entenza H (2016) Les obligations et la responsabilité de l’Etat face aux activités des entreprises militaires et de sécurité privées. Helbing Lichtenhahn, Basel. Fortin K (2017) The Accountability of Armed Groups under Human Rights Law. Oxford University Press, Oxford. Geiss R et al. (eds) (2017) Humanizing the Laws of War. The Red Cross and the Development of International Humanitarian Law. Cambridge University Press, Cambridge. Higgins R (1994) Problems and Process: International Law and How We Use It. Clarendon Press, Oxford. Higgins N (2010) Regulating the Use of Force in Wars of National Liberation: The Need for a New Regime. A Study of the South Moluccas and Aceh. Martinus Nijhoff, Leiden/Boston. Hofmann R (ed) (1999) Non-State Actors as New Subjects of International Law: International Law from the Traditional State Order towards the Law of the Global Community: Proceedings of an International Symposium of the Kiel-Walter Schucking. Duncker & Humblot, Berlin. International Committee of the Red Cross (2018) The Roots of Restraint in War. ICRC, Geneva. International Law Association (2016) Non State Actors. Final Report. https://ila.vettoreweb.com/ Storage/Download.aspx?DbStorageId=1206&StorageFileGuid=fd5b9048-2919-45dc-bcbebca53fd4c7a7. Accessed 7 March 2019. Klabbers J (2003) (I Can’t Get No) Recognition: Subjects Doctrine and the Emergence of Non-State Actors. In: Petman J, Klabbers J (eds) Nordic Cosmopolitanism. Essays in International Law for Martti Koskenniemi. Martinus Nijhoff, Leiden/Boston, pp 351–369. Kornprobst M (2015) Non-State Actors in International Relations: Actors, Processes, and an Agenda for Multifaceted Dialogue. In: Noortmann M, Reinisch A, Ryngaert C (eds) Non-State Actors in International Law. Hart Publishing, Oxford/Portland, pp 295–322. Lauterpacht H (1970) The Subjects of International Law. In: Lauterpacht E (ed) International Law. Being the Collected Papers of Hersch Lauterpacht, Volume I: The General Works. Cambridge University Press, Cambridge, pp 136–150. Leroux N (2009) La condition juridique des O.N.G. internationales. Bruylant/Éditions Yvon Blais, Brussels. Lindblom A-K (2005) Non-Governmental Organisations in International Law. Cambridge University Press, Cambridge. Lowe V (2001) The Politics of Law-Making: Are the Method and Character of Norm Creation Changing? In: Byers M (ed) The Role of Law in International Politics: Essays in International Relations and International Law. Oxford University Press, Oxford, pp 207–226. Lowe V et al. (eds) (2010) The United Nations Security Council and War. The Evolution of Thought and Practice since 1945. Oxford University Press, Oxford. Macdonald T (2008) Global Stakeholder Democracy. Power and Representation Beyond Liberal States. Oxford University Press, New York. McCorquodale R (2004) An Inclusive International Legal System. Leiden Journal of International Law 17:477–504. McCorquodale R (2006) The Individual and the International Legal System. In: Evans M (ed) International Law, 2nd edn. Oxford University Press, Oxford, pp 312–328. McDougal M, Reisman M (1980) The Prescribing Function in World Constitutive Process: How International Law Is Made. Yale Studies in World Public Order 6(2):249–284. Murray D (2016) Human Rights Obligations of Non-State Armed Groups. Hart Publishing, Oxford/Portland. Nijman J (2010) Non-State Actors and the International Rule of Law: Revisiting the ‘Realist Theory’ of International Legal Personality. In: Noortmann M, Ryngaert C (eds) Non-State Actors Dynamics in International Law. From Law-Takers to Law-Makers. Ashgate, Farnham/ Burlington, pp 91–124.

16

E. Heffes et al.

Noortmann M (2010) Understanding Non-State Actors in the Contemporary World Society: Transcending the International, Mainstreaming the Transnational, or Bringing the Participants Back In? In: Noortmann M, Ryngaert C (eds) Non-State Actor Dynamics in International Law. From Law-Takers to Law-Makers. Ashgate, Farnham/Burlington, pp 153–170. Noortmann M, Ryngaert C (eds) (2010) Non-State Actors Dynamics in International Law. From Law-Takers to Law-Makers. Ashgate, Farnham/Burlington. Noortmann M et al. (eds) (2015a) Non-State Actors in International Law. Hart Publishing, Oxford/ Portland. Noortmann M et al. (2015b) Introduction. In: Noortmann M, Reinisch A, Ryngaert C (eds) Non-State Actors in International Law. Hart Publishing, Oxford/Portland, pp 1–8. Osofsky H (2012) The creation of the international law of climate change: complexities of sub-state actors. In: Bailliet C (ed) Non-State Actors, Soft Law and Protective Regimes: From the Margins. Cambridge University Press, Cambridge, pp 179–199. Paust J (2015) Armed Opposition Groups. In: Noortmann M, Reinisch A, Ryngaert C (eds) Non-State Actors in International Law. Hart Publishing, Oxford/Portland, pp 273–292. Portmann R (2010) Legal Personality in International Law. Cambridge University Press, Cambridge. Raustiala K (1997) States, NGOs, and International Environmental Institutions. International Studies Quarterly 41:719–740. Rittberger V (ed) (2001) Global governance and the United Nations system. United Nations University Press, Tokyo/Paris. Roberts A, Sivakumaran S (2012) Lawmaking by Nonstate Actors: Engaging Armed Groups in the Creation of International Humanitarian Law. Yale Journal of International Law 37(1):107–152. Rodenhäuser T (2018) Organizing Rebellion. Non-State Armed Groups under International Humanitarian Law, Human Rights Law and International Criminal Law. Oxford University Press, Oxford. Rona G (2004) The ICRC’s status: in a class of its own. https://www.icrc.org/eng/resources/ documents/misc/5w9fjy.htm. Accessed 15 April 2016. Rossi I (2010) Legal Status of Non-Governmental Organizations in International Law. Intersentia, Antwerp/Oxford/Portland. Sassòli M (2010) Taking Armed Groups Seriously: Ways to Improve their Compliance with International Humanitarian Law. Journal of International Humanitarian Legal Studies 1:5–51. Schabas W (2006) The UN International Criminal Tribunals. The Former Yugoslavia, Rwanda and Sierra Leone. Cambridge University Press, Cambridge. Scobbie I (2014) A View of Delft. Some Thoughts about Thinking about International Law. In: Evans M (ed) International Law. Fourth Edition. Oxford University Press, Oxford, pp 53–88. Sivakumaran S (2011) Lessons for the Law of Armed Conflict from Commitments of Armed Groups: Identification of Legitimate Targets and Prisoners of War. International Review of the Red Cross 93(882):463–482. Sivakumaran S (2012) The Law of Non-International Armed Conflict. Oxford University Press, Oxford. Slaughter A-M (2004) A New World Order. Princeton University Press, Princeton/London. Szazi E (2012) NGOs: Legitimate subjects of international law. Leiden University Press, Leiden. Tallberg J et al. (2013) The Opening Up of International Organizations. Transnational Access in Global Governance. Cambridge University Press, Cambridge. Teubner G (ed) (1997) Global Law without a State. Dartmouth, Aldershot. Tonkin H (2011) State Control over Private Military and Security Companies in Armed Conflict. Cambridge University Press, New York. van Boven T et al. (eds) (1997) The Legitimacy of the United Nations: Towards an Enhanced Legal Status of Non-State Actors. Netherlands Institute of Human Rights, Utrecht. Verdirame G (2011) The UN and Human Rights. Who Guards the Guardians? Oxford University Press, Oxford. Warbrick C, Lowe V (eds) (1994) The United Nations and the Principles of International Law. Essays in Memory of Michael Akehurst. Routledge, London.

1 Introduction: The Functions and Interactions …

17

Weinstein J (2007) Inside Rebellion. The Politics of Insurgent Violence. Cambridge University Press, Cambridge. Wilson H (1990) International Law and the Use of Force by National Liberation Movements. Clarendon Press, Oxford. Woodward B (2010) Global Civil Society in International Lawmaking and Global Governance. Martinus Nijhoff, Leiden/Boston. Zegveld L (2002) Accountability of Armed Opposition Groups in International Law. Cambridge University Press, Cambridge.

Ezequiel Heffes is a Thematic Legal Adviser at Geneva Call, a humanitarian NGO that promotes respect of humanitarian norms by armed non-State actors. Ezequiel holds an LL.M. in IHL and Human Rights from the Geneva Academy, and a law degree from the University of Buenos Aires, School of Law. Prior to joining Geneva Call, he worked as a field and protection delegate and as a head of office for the ICRC in Colombia, Afghanistan and the Democratic Republic of Congo. He has participated in different research projects and has published various articles and book chapters on different international law issues, including in the UN Max Planck Yearbook of United Nations Law, International Review of the Red Cross, the Yearbook of International Humanitarian Law and the Journal of Conflict and Security Law. He is currently working on a monograph on detention by non-State armed groups under international law with Cambridge University Press. Ezequiel is a co-editor of the Armed Groups and International Law blog. Marcos D. Kotlik is the Academic Coordinator of the Observatory of International Humanitarian Law at the University of Buenos Aires, School of Law (UBA), where he is also a Lecturer in International Law (on academic leave). He was a Judicial Fellow at the International Court of Justice for the 2018–2019 period. He previously worked as an attorney for the Center for Legal and Social Studies (CELS), a human rights organisation based in Buenos Aires, and as a consultant for the Institute of Public Policies on Human Rights of MERCOSUR and other regional organisations. He holds a Law Degree and a Masters in International Relations from UBA, as well as an LLM from the University of Michigan Law School. Manuel J. Ventura is an Associate Legal Officer in the Office of the Prosecutor (OTP) at the International Residual Mechanism for Criminal Tribunals, an Adjunct Fellow at the School of Law at Western Sydney University and is a Director of The Peace and Justice Initiative. He has previously served in Chambers at the Special Tribunal for Lebanon (STL), in the OTP at the International Criminal Tribunal for the former Yugoslavia, in Defence at the International Criminal Court, and Chief Justice Mogoeng Mogoeng at the Constitutional Court of South Africa and President Antonio Cassese at the STL. He is an editor of Modes of Liability in International Criminal Law (Cambridge University Press, 2019) and publishes regularly on topics related to international criminal law and justice.

Part I

The Proliferation of NSAs Involved in Armed Conflict

Chapter 2

What Are ‘Armed Non-State Actors’? A Legal and Semantic Approach Annyssa Bellal

Contents 2.1 Introduction........................................................................................................................ 2.2 ‘Armed’ v. ‘Non-Armed’ .................................................................................................. 2.2.1 A Reference to the Nature of the Actor: The Notion of ‘Armed Forces’............ 2.2.2 The Use of ‘Armed Violence’ as a Distinguishing Feature of ANSAs................ 2.2.3 Types of ‘Armed’ Non-State Actors...................................................................... 2.2.4 Do ANSAs Have a Right to Use Armed Force in Certain Circumstances? ........ 2.3 Non-State v. State.............................................................................................................. 2.3.1 Partially or Non-recognized States......................................................................... 2.3.2 National Liberation Movements............................................................................. 2.3.3 De Facto Authorities .............................................................................................. 2.4 ‘Actors’ v. Individuals....................................................................................................... 2.4.1 IHL and ANSAs as Collective Actors................................................................... 2.4.2 The Limits of Individual Criminal Responsibility for ANSAs’ IHL Violations................................................................................................................ 2.5 Conclusion ......................................................................................................................... References ..................................................................................................................................

22 24 24 27 28 32 34 35 36 38 38 39 40 41 42

Abstract The terms ‘armed non-state actors’ (ANSAs), ‘organized armed groups’, ‘insurgents’ or ‘terrorist groups’ are not defined in international treaties or international customary law. However, there are legal and political consequences attached to these terms. As an effort to better understand the concept of an ANSA itself and its regulation under international law, this chapter proposes to further reflect on what are ANSAs, by proposing a critical analysis of each of its constitutive terms: ‘armed’ v. ‘non-armed’, ‘state’ v. ‘non-state’, and ‘actors’ v. ‘individual’. We will see that a multiplicity of meanings and legal consequences can be drawn from each of these apparently straightforward words, which perhaps shows A. Bellal (&) Geneva Academy of International Humanitarian Law and Human Rights, Geneva, Switzerland e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 E. Heffes et al. (eds.), International Humanitarian Law and Non-State Actors, https://doi.org/10.1007/978-94-6265-339-9_2

21

22

A. Bellal

that the concept of an ANSA is not as well understood under international law as one would hope. Keywords International Humanitarian Law Liberation Movements Counter-Terrorism Authorities




2.1


Armed Non-State Actors
National
Criminal Organizations
De Facto

Introduction

‘The world is blue as an orange. No error, the words do not lie’, claimed Paul Eluard in his famous poem.1 Unfortunately, in the stern and less poetic world of legal analysis, words not only should be as close as possible to the (perceived) reality of what they describe, but words can and do sometimes ‘lie’, especially when it comes to political and ideological rhetoric. This is particularly the case with regards to ‘armed non-state actors’ (ANSAs), also sometimes called ‘armed opposition groups’, ‘rebels’, ‘freedom fighters’ or ‘terrorist organizations’. While these terms potentially depict the same or at least a similar reality—a group of individuals using armed force to achieve certain goals—they convey quite different perceptions of what they may in fact represent. In that sense, these are subjective terms, which may, depending on the context, mean ‘different things to different people’.2 Thus, joining ‘rebels’ or ‘freedom fighters’ can be perceived as a noble and even just endeavour, while being part of a so-called ‘terrorist group’ or ‘criminal organization’ can be much more problematic not only from a moral, but also from a legal point of view. During the Spanish Civil War in the 1930s for instance, the International Brigades3 were usually considered to be a group of ‘legitimate’ combatants fighting for a just cause to defeat fascism, as depicted in André Malraux’s epic novel Hope. More recently, in March 2018, when a British woman who had joined the Kurdish forces fighting in the civil war in Syria died in the battle of Afrin, her father described her as being ‘incredibly principled, brave, determined and committed’.4 Irrespective of the fact that these kind words were spoken by a father who was understandably bereaved by the death of his daughter, it is clear that joining the Kurdish armed group was seen as being less reprehensible than fighting for other ANSAs in that conflict, even by the wider international 1

Eluard 1929. Clapham 2009, p 200. 3 The International Brigades were constituted of groups of foreign volunteers of different nationalities who fought on the Republican side against the Nationalist forces during the Spanish Civil War of 1936–39. See Encyclopedia Britannica 2017. 4 Dearden L and Osborne S 2018 British woman killed fighting for all-female Kurdish militia in Syria, The Independent, 19 March 2018. https://www.independent.co.uk/news/world/middle-east/ british-woman-killed-syria-anna-campbell-lewes-east-sussex-fighting-all-female-kurdish-militiaa8262831.html. Accessed 4 September 2018. 2

2 What Are ‘Armed Non-State Actors’? A Legal and Semantic Approach

23

community.5 The legal fate and moral reputation of the foreign ‘Jihadists’ or ‘terrorist’ fighters that have joined the Islamic State in Syria are indeed much darker. Of course, the actions taken by an ANSA will also determine the way it is perceived and what norms might be applicable to it, particularly when it commits terrorist acts, but these examples show that it is also important to look at the relationship or the possible discrepancy between the ‘description’ of a concept, such as ‘armed non-state actors’ and the nature of the concept itself.6 More specifically 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 behaviour (applicability rationae materiae). Interestingly, international law does not contain a definition of an ANSA (or similar concepts) either in treaties or customary international law. However, as will be seen, international law, in particular international humanitarian law (IHL), regulates ANSAs according to a certain number of their characteristics. For instance, under Protocol I Additional to the Geneva Conventions of 1949 (1977) (AP I), an ‘authority representing a people’, a term nowhere defined in the treaty, has the possibility to make a declaration under Article 96(3) which has legal consequences.7 It has also been argued that ANSAs can be considered as ‘de facto authorities’, another undefined notion in treaty or customary international law, which may have human rights obligations, unlike other types of ANSAs. Finally, ANSAs that are qualified as ‘terrorists’ will also be treated differently under international law, as well as in policy. For all these reasons, and as an attempt to better understand the concept of ANSA itself and its regulation under international law, this chapter intends to reflect on what are ANSAs by proposing a critical analysis of each of its constitutive terms: ‘armed’ v. ‘non-armed’, ‘State’ v. ‘non-State’, and ‘actors’ v. ‘individual’. We will see that a multiplicity of meanings and legal consequences can be drawn

In 2017, The United States even decided to arm Kurdish armed groups in their fight against the Islamic State. The Guardian 2017 US to arm Kurdish fighters against Isis in Raqqa, despite Turkish opposition, 9 May 2017. https://www.theguardian.com/world/2017/may/09/us-armkurdish-fighters-syria-isis-raqqa-trump. Accessed 4 September 2018. 6 On the concept of ‘the signified’ and the ‘significant’, see Ferdinand de Saussure, Course of General Linguistics, (1916) (translation 2011). 7 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the protection of victims of international armed conflicts, opened for signature 8 June 1977, 1125 UNTS 3, entered into force 7 December 1978 (AP I), Article 96, para 3 provides that: ‘The authority representing a people engaged against a High Contracting Party in an armed conflict of the type referred to in Article 1, para 4 may undertake to apply the Conventions and this Protocol in relation to that conflict by means of a unilateral declaration addressed to the depositary. Such declaration shall, upon its receipt by the depositary, have in relation to that conflict the following effects: (a) the Conventions and this Protocol are brought into force for the said authority as a Party to the conflict with immediate effect; (b) the said authority assumes the same rights and obligations as those which have been assumed by a High Contracting Party to the Conventions and this Protocol; and (c) the Conventions and this Protocol are equally binding upon all Parties to the conflict.’ 5

24

A. Bellal

from each of these apparently straightforward terms, which perhaps shows that the concept of an ANSA is not as well understood under international law as one would hope.

2.2

‘Armed’ v. ‘Non-Armed’

The first descriptive term to be addressed is the adjective qualifying non-state actors as being ‘armed’. An ‘armed’ organization seems to indicate that it carries weapons and may use force. As such, it will be bound by certain rules of either IHL or human rights law, notably on law enforcement. However, using the term ‘armed’ to define a certain type of non-state actor (as opposed to ‘non-armed’) is problematic, as it is not precise enough and can induce confusion. For instance, is the ‘civil administration’ of an ANSA also to be considered ‘armed’ and subject to the same rules of international law? Similarly, can we consider the United Nations as an ‘armed’ non-state actor merely because it deploys in certain countries ‘robust’ peacekeeping operations? The confusion lies in the fact that the term ‘armed’ refers to two different, albeit related, notions. First the nature of the actor: an armed actor can indeed be state military forces or the police, but also a rebel group or a private military and security company (PMSC). Second, the term ‘armed’ also indicates the means a particular actor uses to achieve a certain goal, i.e. the use of armed force, which can be legal or not.

2.2.1

A Reference to the Nature of the Actor: The Notion of ‘Armed Forces’

In the IHL realm, one immediate reference that comes to mind is the concept of ‘armed forces’. This is mentioned for instance in Common Article 3(1) of the Geneva Conventions (1949), applicable in non-international armed conflicts (NIACs) involving States and ANSAs or ANSAs fighting each other. It states that each Party to the conflict must protect and respect: [p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria (emphasis added).

The term ‘armed forces’ is not defined in the Geneva Conventions (1949), but according to the 2016 ICRC Commentary of this provision, it refers to ‘the armed forces of both the State and non-State Parties to the conflict’.8 8

ICRC 2016, paras 529–530.

2 What Are ‘Armed Non-State Actors’? A Legal and Semantic Approach

25

One has to read Article 43 of AP I (1977) to find a definition of what the ‘armed forces’ of a party to a conflict actually are: 1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system, which, ‘inter alia’, shall enforce compliance with the rules of international law applicable in armed conflict. 2. Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities. 3. Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.

This definition, however, applies to international armed conflicts (IACs), i.e. conflicts involving States or situations of belligerent occupation.9 This is true under treaty law as well as under customary international law.10 As a consequence, the term ‘armed forces’ mentioned in Common Article 3 can neither be defined by reference to Article 43 of AP I (1977) nor by customary international law. In fact, in this context, the term ‘armed forces’ relates to the nature of the actor, and more specifically in legal terms to its ‘status’. This is made clear in Article 43(2) of AP I (1977), which underlines that members of armed forces as defined in para 1 ‘have the right to participate directly in hostilities’ or, in other words, they enjoy prisoners of war (POW) status. Members of ANSAs that are a Party to non-international armed conflicts do not enjoy such a status in IHL, and they will normally be criminally liable under the national law of their States for having taken up arms and participated in hostilities against the State. That being said, the definition of ‘armed forces’ provided by AP I (1977) also applies to certain types of ANSAs. Indeed, Article 43(1) stipulates that armed forces consist of all ‘organized groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party’ (emphasis added). The armed actors alluded to here are ‘militias’ and ‘organized resistance

9

Additional Protocol I (1977) supplements the Geneva Conventions (1949) and applies in situations as defined by Common Article 2 of the conventions, which reads: ‘In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance’. 10 Rule 4 of the ICRC Customary International Humanitarian Law study defines the term ‘armed forces’ as consisting of ‘all organized armed forces, groups and units which are under a command responsible to that party for the conduct of its subordinates’. It further underlines that this rule only applies in international armed conflicts (IACs), although for the principle of distinction, ‘it may also apply to State armed forces in non-international armed conflicts’. ICRC n.d. Customary IHL Database, rule 4.

26

A. Bellal

movements’ as well as so-called ‘national liberation movements’, that fall under the conditions of Articles 1(4) and 44(3) of AP I (1977). ‘Militias’ and ‘organized resistance movements’ are both mentioned in the Geneva Conventions (1949), notably in Article 4 of the Third Geneva Convention relative to the Treatment of Prisoners of War (1949) (GC III). While the term ‘militias’ is not defined in IHL, it can be understood as a ‘military or paramilitary unit or group, which is not composed of professional soldiers but of regular citizens who are trained for their military duty in cases of emergency to support regular troops’.11 They are not usually part of a State’s regular armed forces, even if they play a supplementary role to them. ‘Resistance movements’ neither form part of the official armed forces of a Party to a conflict, but nevertheless ‘belong’ to such a Party.12 Because of their de facto relationship with the armed forces of a State that is Party to a conflict, both militias and resistance movements enjoy POW status. The degree to which we can consider militias and resistance movements as being ‘non-State’ is thus debatable. Accordingly, these two types of actors, as mentioned in the 1949 Geneva Conventions, should not be considered as ANSAs as envisaged in this chapter. On the other hand, one cannot consider ‘national liberation movements’ to be linked to the armed forces of the State against which they are fighting. They thus remain ANSAs that benefit from certain privileges usually not afforded to non-State actors, as will be discussed in next section on the terms ‘State’ v. ‘non-State’. In the context of NIACs, Additional Protocol II (1977) (AP II) speaks about ‘dissident armed forces or other organized armed groups’, without defining these terms. In view of the silence of treaty and customary IHL, the ICRC interpretative guidance on the notion of Direct Participation in Hostilities proposed that, for the purposes of the principle of distinction: organized armed groups constitute the armed forces of a non-State party to the conflict and consist only of individuals whose continuous function it is to take a direct part in hostilities (‘continuous combat function’).13

In other words, the persons who assume exclusively political, administrative or other non-combat functions are not considered to be members of the organized armed group, but are civilians protected by the principle of distinction. This would be relevant, for instance, for the autonomous region of Rojava in northern Syria, of which the People’s Protection Units (YPG)/Women’s Protection Units (YPJ) constitute the ‘armed forces’,14 or for Hamas in Gaza and its armed wing, the

11

Gebhard 2010, para 1. Barnidge 2011, para 1. See Geneva Convention relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135, entered into force 21 October 1950 (Geneva Convention III), Articles 4(1) and 4(2). 13 ICRC 2009, p 27. 14 See YPG International (n.d.) Rojava. http://ypg-international.org/rojava/. Accessed 1 June 2018. 12

2 What Are ‘Armed Non-State Actors’? A Legal and Semantic Approach

27

Izz ad-Din al-Qassam Brigades.15 Because the term ‘armed forces’ applied to ANSAs can be confusing, one might refer to the other significance of the term ‘armed’, as in the use of ‘armed’ force or ‘armed’ violence, to better define these actors.

2.2.2

The Use of ‘Armed Violence’ as a Distinguishing Feature of ANSAs

In his famous lecture Politics as a Vocation (1918), the German sociologist Max Weber defined the State as a ‘human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory’.16 From that perspective, ANSAs are frequently described as non-State actors that use violence or armed force to reach their goals. Thus, Pablo Policzer described ANSAs quite broadly as any ‘challengers to the state’s monopoly of legitimate coercive force’.17 For the European Union, ANSAs ‘retain the potential to deploy arms for political, economic and ideological objectives, which in practice are often translated into an open challenge to the authority of the State’.18 Conciliation Resources considers ANSAs to be armed actors operating ‘primarily within state borders, engaged in violent attempts to challenge or reform the balance and structure of political and economic power, to avenge past injustices and/or to defend or control resources, territory or institutions for the benefit of a particular ethnic or social group’.19 The relationship between the ends (political, economic or social) and means (use of armed force) as illustrated in these definitions is the thread that allows the establishment in political sciences of ANSA typologies. Typologies can be useful to understand the behaviour of a particular actor and bring clarity to general and elusive concepts. From a legal point of view, typologies of ANSAs are perhaps less relevant. Indeed, under IHL at least, the aim is to bind any type of Party to an armed conflict so as to ensure the broadest humanitarian protection possible. The only pertinent criteria, as we will see, is to what extent such an actor reaches a certain level of organization to be able to respect IHL norms. Typologies of ANSAs could nevertheless be valuable from a legal point of view as they may facilitate a better implementation of international law by helping to identify their adopted military

15

BBC News 2017 Profile: Hamas Palestinian movement, 12 May 2017. https://www.bbc.com/ news/world-middle-east-13331522. Accessed 1 June 2018. 16 Weber 1946. 17 Policzer 2005, p 8. 18 European Union 2012. 19 Conciliation Resources (Accord 2004), quoted in Dudouet 2007, p 4.

28

A. Bellal

strategy20 and of the reasons and incentives leading to either IHL violations or respect of IHL by these actors.21

2.2.3

Types of ‘Armed’ Non-State Actors

Typologies differ from author to author, but one can narrow down ANSAs to the following categories: insurgents, militias, criminal organizations, so-called terrorist organizations/terrorists and PMSCs. It is important to keep in mind that the conceptual lines between ANSAs are often blurry as they tend to borrow characteristics from different types of armed actors. For example, insurgents (that typically have a ‘political agenda’) can also be implicated in drug trafficking (similar to ‘criminal organizations’). In that sense, these categories should be understood as ‘ideal-types’ rather than an absolute and completely faithful description of what the actors are in reality. ‘Insurgents’ are probably the type of ANSAs most alluded to and understood as being Parties to armed conflicts. Insurgents (also often referred to as armed opposition groups; national liberation movements; rebels; or guerrilla fighters) typically aim at destroying the power and legitimacy of a ruling government of a State.22 They can also fight: for the secession of a region or for the end of an occupational or colonial regime. In that sense, they pursue a political — mostly social-revolutionary or ethno-nationalistic — agenda, and view themselves as ‘future armies’ of a liberated population.23

There are many examples of ANSAs that can be understood as ‘insurgents’. For instance, Maoist ANSAs such as the Unified Communist Party of Nepal (UCPN), active in the 1996–2006 armed conflict in Nepal, would squarely fall in this category.24 A second type of ANSA often mentioned in the political science literature, are ‘militias’. In the context of contemporary armed conflicts, militias (also referred to as ‘paramilitaries’; ‘self-defence groups’; ‘vigilantes’) should be understood differently than in Article 4 of GC III (1949). A militia has been described as: a recognizable irregular armed force operating within the territory of a weak and/or failing state. The members of militias often come from the under classes and tend to be composed of young males who are drawn into this milieu because it gives them access to money, resources, power, and security … Militias can represent specific ethnic, religious, tribal, clan, or other communal groups. They may operate under the auspices of a factional leader, clan, or ethnic group, or on their own after the break-up of the states’ forces. They may also

20 21 22 23 24

Sinno 2011, p 321. Bellal 2017b, pp 43–47. Shultz et al. 2004, p 18. Schneckener 2007, p 11. See Peace Insights n.d.

2 What Are ‘Armed Non-State Actors’? A Legal and Semantic Approach

29

be in the service of the state, either directly or indirectly. Generally, members of militias receive no formal military training.25

Research has shown that there might be different types of militias.26 They are for instance ‘pro-government or pro-community’ militias, such as the ANSA known as the Autodefensas Unidas de Colombia (AUC).27 An important problem with these types of ANSAs is the possibility of establishing State responsibility for their actions, since their allegiance to the State and interests may vary and their main motivations are not necessarily politically driven.28 The second category are militias that act in the absence of a central government and are more autonomous than the first category. Examples of these types of militias can be found in Afghanistan in the 1980s and the ‘war lord’ militias that are involved in various armed conflicts in Africa, such as the Lord’s Resistance Army (LRA) in Uganda,29 or vigilante groups in the Lake Chad Basin in central Africa.30 These types of ANSAs often raise various legal issues, such as the uncertainties linked to the necessary degree of organization these actors should have in order to trigger the applicability of IHL.31 The third category are the so-called ‘organized criminal organizations’ (or armed gangs). Such ANSAs usually possess: a clandestine or secret hierarchical structure and leadership whose primary purpose is to operate outside the law in a particular criminal enterprise. Such groups frequently engage in more than one type of criminal activity and can operate over large areas of a region and globally. Often, these groups have a family or ethnic base that enhances the cohesion and security of its members. These armed groups typically maintain their position through the threat or use of violence, corruption of public officials, graft, or extortion.32

Unlike insurgents, criminal organizations do not wish to replace the State and are often not concerned about the well-being of the population under their control or sphere of influence. Many of these actors consist of relatively short-lived structures and are made up of young people with no economic or social prospects.33 That said a few criminal groups have become stable and powerful enough so as to allow them to gain control of a territory and establish an organised and hierarchical structure. Some of these actors, such as the Sinaloa Cartel or the Jalisco Cartel New Generation in Mexico or, historically, the Medellin Cartel in Colombia during the 1980s and 1990s, attain such a heightened level of wealth and power that they

25 26 27 28 29 30 31 32 33

Shultz et al. 2004, p 23. See notably Thompson 2014, p 90. See Stanford University n.d. Thompson 2014, p 71. See Global Security n.d. See International Crisis Group 2017. Bellal 2014. Shultz et al. 2004, p 29. Bangerter 2010, p 392.

30

A. Bellal

openly fight the police and/or the regular armed forces of a State and, accordingly, can be considered a Party to an armed conflict to which IHL is applicable.34 Finally, many authors also include in their typologies of ANSAs, ‘terrorist organizations’ and PMSCs. The so-called ‘terrorist’ ANSAs have as their main strategy to create and exploit fear through the use of violence, usually for political purposes, whether for, or in opposition to, an established government or other ANSAs. This is designed to have a psychological effect and to instil fear among civilians as well as other combatants.35 The Islamic State, for instance, was characterised by the use of ultra-violent armed force and the commission of gruesome atrocities, such as beheadings, mutilations, rape and torture. These acts were carefully and openly disseminated through the use of international media and could be seen as part of a coherent tactic and strategy: ‘the online reputation achieved by the ferocious jihadist inspires such fear that government troops in Iraq and Syria have fled rather than put up a fight’.36 So-called ‘terrorist’ ANSAs are often clandestinely organized, usually in small groups and cells, although sometimes also in larger transnational networks (for example Al-Qaida or the Jemaah Islamiyah in Indonesia).37 There might be useful reasons from a military, political or even policy point of view to categorize certain ANSAs as ‘terrorists’. Indeed, names or categories come ‘with a surrounding set of associations, natures, motives and intents’.38 In that sense, naming a particular actor as a ‘terrorist’ will justify a certain course of action and, presumably, nurture social cohesion by designating who is the enemy: ‘the naming of peoples, territories and phenomena are all part of this attempt to recruit and indicate allies and opponents, as well as to demarcate similarity from difference’.39 However, from an IHL or a general humanitarian perspective, classifying an ANSA as a terrorist group may not be heuristic. The problem lies in the reality that States will tend to label any ANSA that opposes them as ‘terrorists’. Consequently, this tends to blur the distinction between acts that comply with IHL, including acts committed by domestic insurgents against military targets, and acts of terrorism. Indeed, under IHL, both in IACs and NIACs, only ‘acts or threats of violence the primary purpose of which is to spread terror among the civilian population’40 can 34

See Lambin 2018, p 87. Shultz et al. 2004, p 21. 36 Ruthven 2015. 37 On this ANSA, see Council for Foreign Relations 2009. 38 Bhatia 2005, p 9. 39 Ibid., p 12. 40 See 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), Article 51(2); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 609, entered into force 7 December 1978 (AP II), Article 13(2). 35

2 What Are ‘Armed Non-State Actors’? A Legal and Semantic Approach

31

be considered as falling into the category of an ‘act of terrorism, which entails individual criminal responsibility under customary international law’ in armed conflicts.41 In other words, attacks that exclusively target military objectives do not fall into this category. Thus, if any ANSA is categorized as a terrorist by the State, even when they abide by IHL, this will negatively impact on their willingness to continue to respect IHL norms, thereby creating a less effective protective system in armed conflicts. Categorizing ANSAs as terrorists can also have serious legal consequences, notably with regards to domestic criminal trials of ‘terrorist’ fighters. For instance, in France, French nationals who return after having joined the Islamic State will be judged on the basis of terrorist offences, rather than war crimes.42 On the other hand, those who joined the YPG/YPJ that fought against Islamic State will not face the same type of consequences, even if they committed war crimes, since these ANSAs are not listed as terrorist organizations. Thus, being a ‘combatant’ seems to mean different things depending on which group one joins and fights for. The last category to be addressed here are PMSCs. These actors can be defined as: private business entities that provide military and/or security services … Military and security services include, in particular, armed guarding and protection of persons and objects, such as convoys, buildings and other places; maintenance and operation of weapons systems; prisoner detention; and advice to or training of local forces and security personnel.43

While PMSCs are indeed ANSAs, they differ from the other actors listed above as they are contracted by States (or other actors such as international organizations or NGOs) to exercise powers that usually fall within the ambit of governmental authority. PMSCs’ use of armed force is not illegal per se, since it is exercised contractually via a delegation of State authority. Of course, this does not mean that PMSCs cannot violate international law. It only means, in the context of this chapter, that they are different from the other ANSAs that use armed violence ‘illegally’, i.e. in contravention of the State’s monopoly on the use of force. In that context, an interesting issue is the extent to which States can actually control the PMSCs they employ. Indeed, [d]espite the fact that states have hired PMSCs …, the state has no guarantee that these groups will remain ‘loyal’ to the state or see its mission through the end. The state has no guarantee that the group will not seek outside employment, possibly one side off another.44

41

ICTY, Prosecutor v Stanislav Galić, Judgment, 5 December 2003, Case No. IT-98-29-T, paras 113–129. 42 See for example French Court of Cassation, Judgement n° 5259, 7 October 2016 (16-84.597) (in French). https://www.courdecassation.fr/jurisprudence_2/chambre_criminelle_578/5259_7_ 35190.html. Accessed 7 September 2018. See further Van Steenberghe 2018. 43 Swiss Federal Department of Foreign Affairs and International Committee of the Red Cross 2009, p 9. 44 Thompson 2014, p 71.

32

A. Bellal

Finally, and to pursue this line of thought, it seems important to consider the distinction between the ‘legality’ of the use of force and its ‘legitimacy’. Weber’s definition of the State referred to the legitimate use of armed force, thus pointing out the moral and political nature of this authority, rather than its legality (although both should be congruent). The hypothesis underlying Weber’s definition is premised on the notion that States are capable to ensure and enforce law and order in a given territory. As we are reminded by Schneckener: in the modern world, the state — at least in theory — has to fulfil a dual function with regard to the political order: first, the state organizes and guarantees public order domestically within a defined territory; second, all states together constitute the international system and, thereby, the global order.45

Ineffective, weak, or failed States will hardly be able to perform both of these functions. Given the inability of failed States to provide security or ensure the rule of law, it is not uncommon for ANSAs, including those that are listed as ‘terrorist organizations’, to consider their use of force to be legitimate, even though they are aware it is illegal to rebel against the State and participate in hostilities at the domestic level.46 From that perspective, one could inquire whether international law grants ANSAs a right to rebel against tyrannical regimes, that is, to forcefully secede from an existing State or to resort to armed force against an occupying power.

2.2.4

Do ANSAs Have a Right to Use Armed Force in Certain Circumstances?

IHL is silent about the legality of the use of force by ANSAs or States (jus ad bellum) and will apply to the belligerent Parties engaging in hostilities (jus in bello) irrespective of the reasons for the conflict or the legitimacy of the causes for which they are fighting.47 However, there are two instances under international law where the issue of the legality of the resort to armed force by ANSAs arises: the exercise of the right to self-determination and the right to ‘rebel’ against a regime considered to be dictatorial or which engages in widespread human rights violations.48 The right to self-determination is recognized in general public international law (Articles 1(2) and 55 of the UN Charter (1945)) and in international human rights law (Article 1 of both the International Covenant on Civil and Political Rights (1966) and the International Covenant on Economic, Social and Cultural Rights (1966)). Despite these provisions, the UN Charter (1945) does not itself authorize

45 46 47 48

Schneckener 2007, p 10. See generally Gross 2015. ICRC 2015. For more details, see on this Bellal and Doswald-Beck 2011.

2 What Are ‘Armed Non-State Actors’? A Legal and Semantic Approach

33

the use of force for self-determination.49 On the other hand, international law neither positively prohibits the use of force by ANSAs in the exercise of the right to self-determination. The possibility to use of force to achieve self-determination is, for example, contemplated in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations (1970). The Declaration reaffirms that: Every State has the duty to refrain from any forcible action which deprives peoples … of their right to self-determination and freedom and independence. In their actions against and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and receive support in accordance with the purpose and principles of the Charter.50

Hence as noted by Ben Saul, ‘liberation movements have no legal right to use force to secure self-determination, but they do not breach international law by using force (defensively) against its forcible denial’.51 The same point could be made with regard to the ‘right to rebel’, which has been the subject of much debate in both the legal and philosophical literature. For some scholars, a right to rebel, individual as well as collective, must exist to ensure the respect for other fundamental rights and a remedy in case they are violated. More specifically with regard to the remedial dimension of this right, it has been suggested that the right to rebel … must be a secondary rather than a primary right. It exists only when a wrong has been committed. Its point is to provide remedy in the event of the violation on a large scale of primary rights like the right to freedom from arbitrary arrest.52

A right to rebel against an oppressive government exists in the constitutions of some states in the United States (including New Hampshire, Pennsylvania, and Delaware, but not in the US Constitution).53 More notably, Article 20(4) of the constitution of the German Federal Republic authorizes citizens to exercise a right of resistance against attempts to destroy the democratic constitutional order (and not to change the regime).54 At the international level, the preamble of the Universal 49

Doehring 2002, p 61; Saul 2008, p 10; Crawford 2001, p 42. UN General Assembly 1970. 51 Saul, p 10. 52 Honoré 1988, p 38. 53 Ibid., p 42. 54 Ibid., p 43. A ‘right to rebel’ is also included in the constitutions of Benin (see Article 66, Constitution of the Republic of Benin), Burkina Faso (see Article 167, Constitution of Burkina Faso), Chad (see Preamble, Constitution of Republic of Chad), Cuba (see Article 3, Constitution of the Republic of Cuba), Czech Republic (see Czech Charter of Fundamental Rights and Freedoms, Article 23), the Democratic Republic of the Congo (see Article 64, Constitution of the Democratic Republic of the Congo); Ecuador (see Article 98, Constitution of the Republic of Ecuador); El Salvador (see Articles 87–88, Constitution of the Republic of El Salvador); Estonia (see Article 54, Constitution of the Republic of Estonia), Greece (see 2001 Greek Constitution, Article 120(4)), Honduras (see Article 3, Constitution of Honduras), Liberia (see Article 1, Constitution of the Republic of Liberia), Peru (see Article 46, Constitution of Peru), Portugal (see Articles 7(3), 21, 50

34

A. Bellal

Declaration of Human Rights (1948) would give some credence to this notion when it states that ‘whereas it is essential, if man is not to be compelled to have recourse, as a last resource, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law…’.55 Although there was much discussion among the delegations during the drafting of the Universal Declaration, a right to rebel against tyranny was finally not listed as a protected right in the final text, as it was feared it could be abused to undermine genuinely democratic governments or might lead to political destabilisation.56 Such a right was not included in subsequent human rights treaties. Hence, international law does not positively grant the right to rebel. As noted by one author, ‘sovereign states can hardly be expected as a matter of course to grant their subjects a right to secede or rebel’.57 That said, it is equally true that many recognised governments have come into being through rebellion, and this continues to be the case. Therefore, international law does not positively prohibit such rebellions either. As a consequence, if one wishes to be more precise when it comes to defining ANSAs, one should specify that the use of force by these actors is illegal (and not illegitimate) under national law (and not international law).

2.3

Non-State v. State

By ‘non-State’, one can understand that it refers to an entity ‘not acting under the lawful authority of any State’,58 as being ‘distinct from the armed forces of the state’59 or simply not ‘being actually a state’.60 Without any further clarification, non-state actors (NSAs) can thus include a wide range of entities, such as armed

Constitution of the Portuguese Republic), Slovakia (see Article 32, Constitution of the Slovak Republic), Togo (see Article 45, Constitution of the Republic of Togo), and Venezuela (see Article 350, Constitution of the Bolivarian Republic of Venezuela). 55 UN General Assembly 1948. 56 Morsink 1999, p 312. 57 Honoré 1988, p 42. In his Separate Opinion on the ICJ, Accordance with international law of the unilateral declaration of independence in respect of Kosovo, Advisory Opinion, 22 July 2010, ICJ Reports 2010, para 206, Judge Cançado Trindade, without recognizing a ‘right to rebel through the use of force’ per se, did argue that the rights of peoples and individuals as protected by the Universal Declaration of Human Rights and international law in general prevented States from claiming the absolute respect of territorial integrity in case of human rights abuses. According to him, ‘no State can, after perpetrating such heinous crimes, then invoke or pretend to avail itself of territorial integrity: the fact is that any State that acts this way ceases to behave like a State vis-àvis the victimized population’. 58 UN Security Council 2004. 59 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, opened for signature 23 October 2009, 52 ILM 397, entered into force 6 December 2012, Article 1. 60 See Bianchi 2009.

2 What Are ‘Armed Non-State Actors’? A Legal and Semantic Approach

35

groups, civil society, religious groups, as well as non-governmental and intergovernmental organizations. From a legal point of view, it is useful to remember that even when they are distinct from the State, the behaviour of NSAs can sometimes directly engage the responsibility of States under international law. The UN International Law Commission’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts (2001), which represent customary international law, foresees that possibility, for example, when a NSA acts under the control of a State (Article 8); when the NSA has exercised elements of governmental authority in the absence or default of official State authorities (Article 9); or when a NSA becomes the new government, the State then assumes responsibility for the violations committed by the NSA before it assumed power (Article 10).61 In these different scenarios, the relationship between the State and the NSA is clearly established in international law. From a more general perspective though, the ‘non-State’ character of an ANSA can be equivocal in at least three cases: when it possesses all the attributes of a State but is not recognized or only partially recognized by other States; when the ANSA is a national liberation movement; and when it is a so-called ‘de facto authority’.

2.3.1

Partially or Non-recognized States

Under public international law, for a State to exist it should possess four attributes: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other States.62

The existence of a State under international law is thus a question of facts. Through recognition, States (or an intergovernmental organization) admit and accept the legal consequences of the existence of another State. However, the exact scope of recognition remains quite uncertain, both in theory and in practice.63 Indeed, while the majority of scholarship agrees that recognition is only ‘declaratory’ of the existence of a State, and is not ‘constitutive’,64 one must admit that the issue is far from being clear when it comes to ANSAs.

61

See UN International Law Commission 2001. Montevideo Convention on the Rights and Duties of States, opened for signature 26 December 1933, 165 LNTS 19, entered into force 26 December 1934, Article 1. Two additional criteria have also been suggested: independence and legitimacy, see Crawford 1976, pp 93–182. 63 Chen 2000, p 39. 64 Ibid., p 40. 62

36

A. Bellal

For instance, Somaliland, an entity within Somalia, which possesses all the attributes of a State under international law but has not been recognized as such,65 is considered as a ‘non-State actor’.66 The same can be said of the Saharawi Arab Democratic Republic (SADR). The SADR was proclaimed by the Polisario Front in 1976, announced its first government that same year67 and, since 1982, it has been a member of the African Union (formerly Organization of African Unity).68 Recognized by 74 States by the end of the 1980s, the SADR is recognized today by less than 60 States, for the most part in Africa and Latin America.69 Despite the recognition both by States and by an intergovernmental organization, the SADR is considered to be an ANSA by Geneva Call70 and the area it controls as a ‘non-self governing territory’ by the United Nations.71

2.3.2

National Liberation Movements

National liberation movements can be defined ‘by their objective (self-determination), the quality of their constituency (peoples) and the conduct and/ or quality of the opposing government’.72 To what extent national liberation movements can be defined accurately as NSAs, in the same sense than other insurgents, is debatable. As observed by Andrew Clapham: In some ways it is clumsy to list N[ational] L[iberation] M[ovement]s as non-state actors. Their representatives may reject the label of non-state actor as, not only may they wish to stress their putative state-like aspirations and status, but they may sometimes already be recognized as a state member in certain regional inter-governmental organizations.73

Indeed, some of these movements have enjoyed observer status in international organisations (such as the Palestinian Liberation Organization at the UN until the recognition of the existence of the state of Palestine). 65 See BBC News 2017 Somaliland profile, 14 December 2017. http://www.bbc.com/news/worldafrica-14115069. Accessed 12 September 2018; Caramel 2017 Somaliland, les leçons d’un pays fantôme, Le Monde, 10 December 2017. https://www.lemonde.fr/afrique/article/2017/12/10/ somaliland-les-lecons-d-un-pays-fantome_5227623_3212.html. Accessed 12 September 2018. 66 The Swiss NGO Geneva Call engages with ANSAs understood as ‘organized armed entities that include armed groups, national liberation movements and de facto governing authorities … [and] non-recognized States’, see Geneva Call 2019b Armed Non-State Actors that were engaged by Geneva Call. The organization has notably engaged Somaliland on humanitarian issues, Geneva Call 2007. 67 Africa Research Bulletin, June 1976, p 4047 and July 1976, pp 4078 and 4081. 68 See African Union (n.d.) 69 See Centro de Estudos do Sahara Occidental da Universidad de Santiago de Compostela (n.d.) 70 See Geneva Call 2019a Western Sahara. 71 See United Nations (n.d.) 72 Mastorodimos 2015, p 71. 73 Clapham 2006, p 273.

2 What Are ‘Armed Non-State Actors’? A Legal and Semantic Approach

37

Furthermore, national liberation movements benefit from a special regime in IHL, since they are considered Parties to an international armed conflict if they meet the conditions of Article 1(4) AP I (1977), that is, if they are fighting ‘against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination’ and providing the State they are fighting against is a party to the Protocol. Members of national liberation movements may also enjoy POW status, as long as they respect the conditions stipulated in Article 44(3) of AP I (1977).74 In addition, through a unilateral declaration under Article 96(3) of AP I (1977), such movements can undertake to apply not only AP I, but all four Geneva Conventions, including GC III (1949), to the type of conflict outlined in Article 1(4) of AP I (1977). Because of the scope of these provisions, it is crucial to distinguish which ANSAs can in fact be qualified as a national liberation movement. The problem lies in the fact that the term is not defined in treaty law and that UN resolutions on self-determination and AP I (1977) only speak of ‘peoples’, without any further specification:75 Since decolonization is essentially complete, it is hard to identify likely additional candidate for coverage under that provision. While there are a number of separatist movements that remain active within peoples such as Kurds in Iraq, Turkey, and Iran, the dissolution of post-colonial States seems outside the scope of these provisions.76

It will not be possible to go further into details on this fascinating question. One can just note that on 21 June 2015, the Polisario Front made a unilateral declaration under Article 96(3) of AP I (1977) on behalf of the people of Western Sahara and undertook to apply the Geneva Conventions (1949) and Additional Protocol I (1977) to its armed conflict against Morocco.77 The Polisaro Front is thus perhaps one of the last remaining national liberation movements that fulfil the conditions laid down in international law.

The relevant part of Article 44(3) AP I states that: ‘In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly: (a) during each military engagement, and (b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate’. 75 ICRC 1987 commentary of Article 1, para 4 notes that: ‘In international law there is no definition of what constitutes a people; there are only instruments listing the rights it is recognized all peoples hold. Nor is there an objective or infallible criterion which makes it possible to recognize a group as a people: apart from a defined territory, other criteria could be taken into account such as that of a common language, common culture or ethnic lies’. ICRC 1987, para 103. 76 Glazier 2009, para 18. 77 See Swiss Confederation 2015. 74

38

A. Bellal

2.3.3

De Facto Authorities

‘De facto authorities’ have not been defined in treaty or customary law, but can be described as ‘entities, which exercise effective authority over some territory, no matter whether they are engaged in warfare with the sovereign or are subsisting in times of peace’.78 In the 1939 Arantzazu Mendi case before the UK House of Lords, de facto administrative control was understood as the exercise of: all the functions of a sovereign government, in maintaining law and order, instituting and maintaining courts of justice, adopting or imposing laws regulating the relations of the inhabitants of the territory to one another and to the government.79

In other words, ‘de facto authorities’ are ANSAs that display State-like structures, which may or may not have been recognized as such, and are not necessarily national liberation movements. Legally speaking, qualifying an ANSA as a de facto authority can trigger the applicability of different norms, for instance those relating to self-defence under the UN Charter (1945) (normally only recognized for States)80 or arguably human rights law.81 For these reasons, it seems crucial to determine accurately the exact nature of ANSAs so as to facilitate the analysis and determination of the correct applicable legal framework. Furthermore, to what extent de facto authorities can be considered as ‘armed’ non-state actors should be carefully assessed, in particular, as see above, with regard to the degree to which members of these entities directly participate in hostilities or not.

2.4

‘Actors’ v. Individuals

In the context of this chapter, the term ‘actor’ refers to the collective nature of ANSAs. It is true that, technically speaking, this term could also include an individual, the UN Security Council reminds us that a non-State actor can be an ‘individual or entity, not acting under the lawful authority of any State’.82 The notion of ‘groups’ as in ‘non-State armed groups’ would perhaps have been clearer

78

Schoiswohl 2001, p 50; see also Van Essen 2012, pp 31–49; Frowein 2013. The Arantzazu Mendi case, House of Lords, Judgment of 23 February 1939, L.R., [1939] A.C. 256 reproduced in 1942 ILR 60, at 65 et seq, cited by Schoiswohl 2001, p 51. 80 See on the justification of self-defense by the USA against the Taliban in 2001, Wolfrum and Philipp 2002, p 584 and ff. 81 In its report of 2011, the International Commission of Inquiry on Libya stated that, ‘it is increasingly accepted that where non-state groups exercise de facto control over territory, they must respect fundamental human rights of persons in that territory’. UN Human Rights Council 2011, para 72. On the applicability of human rights law to ANSAs, see Zegveld 2002, p 54; Fortin 2017a; Murray 2016. 82 UN Security Council 2004. 79

2 What Are ‘Armed Non-State Actors’? A Legal and Semantic Approach

39

in this respect. The broader term ‘actor’ is nevertheless preferred as it can include different types of non-State entities, such as partially or non-recognized States. An interesting issue, obviously beyond the scope of this chapter, would be to analyze the reasons why individuals decide to engage in violent collective action that might actually run against their own personal interests (chiefly, exposing them to the risk of being killed).83 From a legal perspective, another relevant question would be to inquire to what extent ANSAs possess a legal personality under international law.84 Due to the limited scope of this contribution, this section will only address one particular question that could be called ‘the paradox of ANSA accountability’: IHL binds ANSAs as collective actors, but the only mechanism to hold them legally accountable for IHL violations is through individual criminal responsibility.

2.4.1

IHL and ANSAs as Collective Actors

It is quite obvious that certain endeavours, to be successful, require collective action and coordination. They need a certain degree of organization. In particular: [e]ngaging in armed conflict consists of performing a number of essential operations, such as co-ordination, mobilization, and the manipulation of information, to undermine rivals within a contested territory. Amorphous entities such as civilizations, ethnic groups, or the masses cannot perform such operations—only organizations can do so.85

The application of IHL to ANSAs is precisely determined by the level of organization that such actors must have in order to be able to respect and implement IHL norms. While it is not explicit in treaty law, the ICRC interpreted Common Article 3 as being applicable to the Parties that show a ‘minimum of organization’.86 The ICTY’s Boškoski and Tarčulovski case stated that a group would need to have ‘some hierarchical structure’ and that, as a minimum, the group must be able to implement the basic obligations of Common Article 3. It noted five elements that could help to identify the degree of organization of an ANSA: the existence of a command structure; the fact that the group could carry out operations in an organized manner; elements indicating a level of sophistication with respect to logistics; the existence of internal discipline; and the ability to speak with ‘one voice’.87 For the purposes of IHL, as long as an ANSA has a certain degree of organization, its structure is irrelevant. The various types of ANSAs (insurgents; militias; 83

See on this Hardin 1995; and Weinstein 2006. See on this Fortin 2017a; and Murray 2016. 85 Sinno 2011, p 312. 86 ICRC 2008. 87 ICTY, Prosecutor v Boškoski and Tarčulovski, Judgment, Trial Chamber, 10 July 2008, Case No IT-04-82-T, para 195 and ff. 84

40

A. Bellal

criminal organizations; so-called terrorist organizations; PMSCs) will equally not affect IHL’s applicability so long as the actor is again sufficiently organized and engages in protracted armed violence against one or several States or other ANSAs.88 Furthermore, we should bear in mind that: [r]equiring a party to a non-international armed conflict to form a collective entity is also in accordance with the general understanding that armed conflicts under international law do not signify a relation between individuals but between collective entities.89

In other words, the use of armed force by isolated individuals will not be regulated by IHL, but by other bodies of law, in particular human rights (with regard to the right to life and law enforcement) or domestic criminal law. However, while the ‘collective’ nature of the armed actors is one of the necessary conditions for IHL’s applicability, the only legal avenue in existence for accountability for violations by these actors is individual criminal responsibility.

2.4.2

The Limits of Individual Criminal Responsibility for ANSAs’ IHL Violations

‘I am not the LRA … It is the LRA who abducted people, in northern Uganda. It is the LRA who killed people’.90 These words, spoken by Dominic Ongwen, a former leader of the LRA and former child soldier currently on trial at the International Criminal Court, illustrate the complex dynamic between individual responsibility and collective action. One important limitation of international criminal courts and tribunals (or any international court in general) is their lack of jurisdiction over ANSAs as collective entities. Although holding an individual criminally responsible for the international crimes he or she committed is necessary, there are good reasons for holding an ANSA as such responsible for the violations of international law committed by its members. For instance, the person who committed the violations with the support of the ANSA might be dead, which would prevent any possibility of obtaining reparations in an individualized criminal trial. The group, on the other hand, might have assets that could be seized if responsibility is established. More generally,

See the well-known definition of conflict in the ICTY Tadić case: ‘[A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’. ICTY, Prosecutor v. Dusko Tadić (aka ‘Dule’), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995, Case No. IT-94-1, para 70. 89 Rodenhäuser 2017, p 11. See generally on the organization criteria, Rodenhäuser 2018. 90 Burke J 2016 Ex-child soldier Dominic Ongwen denies war crimes at ICC trial, The Guardian, 6 December 2016. https://www.theguardian.com/world/2016/dec/06/dominic-ongwen-the-haguetrial-war-crimes-lra-uganda. Accessed 5 June 2018. 88

2 What Are ‘Armed Non-State Actors’? A Legal and Semantic Approach

41

criminal trials are also reductive, tending not to account for the groups’ dynamics in inciting crimes: organized armed groups regularly succeed to create a climate in which crimes are perceived to be in conformity with, rather than a deviation from, standards of behavior accepted within such a group.91

One need only recall the massive number of foreign fighters of all nationalities that have joined the Islamic State in Iraq and Syria between 2013–2016, to understand how powerful and efficient the ideology of an ANSA can be, and how it can influence the behavior of its members.92 The prospect of establishing at the international level a system of criminal accountability for collective entities, such as for ANSAs, remains dim. The Rome Statute establishing the International Criminal Court was conceived as being applicable to individuals and with the assumption is that it is practically unfeasible to try a collective entity as such.93 Despite the benefit of holding a group as such criminally liable, there is also a significant drawback in that it runs the risk of punishing an individual for offences performed by others, notably the leaders of the ANSA. Thus, the answer probably lies in establishing accountability mechanisms other than criminal, such as truth commissions in a transitional justice context. If well designed, truth commissions might indeed have a more comprehensive and inclusive approach that gives more space to the collective nature of ANSAs.94

2.5

Conclusion

So what are ANSAs? As this chapter aimed at demonstrating, there are no simple ways to define them. To borrow from Aristotle’s concept, ‘the whole is more than the sum of its parts’, the term ‘ANSA’ is more than the sum of its words, as each one of them have their own meanings and significance. Thus, the notion of being an ‘armed’ actor, as an indication of the nature of ANSAs, similar to the ‘armed forces’ of a State, can be confusing since it may cover several types of actors possessing different status under IHL. In addition, the term ‘armed forces’ per se, although mentioned in Common Article 3 (and thus covering ANSAs Parties to NIACs) is only defined in treaty law and customary international law for IACs, which adds a layer of confusion. In NIACs, the persons who work or support actors such as Hamas or the YPG/YPJ (Rojava administration) and are not performing a continuous combat function, are not targetable under IHL since they are considered civilians. Thus, strictly speaking, these persons should not

91 92 93 94

Kleffner 2009, p 246. Bellal 2016. See Clapham 2008. Bellal 2017a.

42

A. Bellal

be considered as part of an ‘armed’ non-State actor. The better way to understand the term ‘armed’ is to consider it as a distinguishing feature of non-State actors and then to focus on the means—that is, armed violence—used by these actors to attain certain goals. Focusing on the use of armed force as a means to an end also helps in devising typologies of ANSAs, allowing a better understanding of their modes of action and strategies. The term ‘armed’ is also a way to distinguish between different ‘non-State’ actors and to reflect on the legality of their use of force under international law. Furthermore, we have seen that the label ‘non-State’ can be deceiving. Indeed, while non-recognized or partially recognized States, national liberation movements and de facto authorities are generally considered to be ANSAs, certain norms applicable to States have been directly transposed to them, thus calling for a more nuanced definition of the concept. Finally, the collective nature of ANSAs is an essential feature of these actors. While there are already some mechanisms at the international level to hold ANSAs accountable, at least from a political perspective,95 there is a need to devise a more comprehensive and fairer system of responsibility—one which does not rely exclusively on international criminal law.96

References Africa Research Bulletin (1976–1977) vol. 13–14. African Union (n.d.) Member State Profiles. https://au.int/memberstates. Accessed 12 September 2018. Bangerter O (2010) Territorial gangs and their consequences for humanitarian players. International Review of the Red Cross 92(878):387–406. Barnidge R (2011) Resistance Movements. Max Planck Encyclopedia of Public International Law. https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e394. Accessed 15 June 2019. Bathia MV (2005) Fighting words: naming terrorists, bandits, rebels and other violent actors. Third World Quarterly 26:5–22. Bellal A (2014) Central African Republic: From Conflict to Chaos and Back Again? In: Casey-Maslen S (ed) The War Report 2013. Oxford University Press, Oxford, pp 411–428. Bellal A (2016) Beyond the pale? Engaging the Islamic State on international humanitarian law. Yearbook of International Humanitarian Law 2015:123–152. Bellal A (2017a) Non-State Armed Groups in Transitional Justice Processes Adapting to New Realities of Conflict. In: Duthie R, Seils P (eds) Justice Mosaics: How Context Shapes Transitional Justice in Fractured Societies. International Centre for Transitional Justice, New York, pp 234–258.

95

For example the UN Secretary General reports on Children and armed conflict contain a list of states as well as ANSAs that commits one or more grave violations against children. UN Secretary General 2017. 96 See Heffes and Frenkel 2017, pp 55–65; Fortin 2017b, pp 157–180.

2 What Are ‘Armed Non-State Actors’? A Legal and Semantic Approach

43

Bellal A (2017b) Welcome on Board: Improving Respect for International Humanitarian Law Through the Engagement of Armed Non-State Actors. Yearbook of International Humanitarian Law, 19:37–61. Bellal A, Doswald-Beck L (2011) Evaluating the Use of Force During the Arab Spring. Yearbook of International Humanitarian Law 14:3–35. Bianchi A (ed) (2009) Non-State Actors and International Law. Routledge, Farnham. Centro de Estudos do Sahara Occidental da Universidad de Santiago de Compostela (n.d.) Reconocimientos de la RASD. http://www.arso.org/03-2.htm. Accessed 12 September 2018. Chen L-D (2000) An Introduction to Contemporary International Law a Policy Oriented Perspective. Yale University Press, London. Clapham A (2006) Human Rights Obligations of Non-State Actors. Oxford University Press, Oxford. Clapham A (2008) Extending International Criminal Responsibility beyond the Individual to Corporations and Armed Opposition Groups. Journal of International Criminal Justice 6:899– 926. Clapham A (2009) Non-State Actors (in Postconflict Peace-building). In: Chetail V (ed) Postconflict peace-building: A lexicon. Oxford University Press, Oxford, pp 200–212. Council for Foreign Relations (2009) Jemaah Islamiyah (a.k.a. Jemaah Islamiah). https://www.cfr. org/backgrounder/jemaah-islamiyah-aka-jemaah-islamiah. Accessed 1 June 2018. Crawford J (1976) The criteria for statehood in international law. British Yearbook of International Law 48:93–182. Crawford J (2001) The Right of Self-determination in International Law: Its Development and Future. In: Alston P (ed) Peoples’ Rights. Oxford University Press, Oxford, pp 7–42. De Saussure F (1916) Course in General Linguistics, translation 2011 by Baskin W. Colombia University Press, New York. Doehring K (2002) Self Determination. In: Simma B (ed) The Charter of the United Nations, A Commentary, 2nd edn. Oxford University Press, Oxford, pp 47–63. Dudouet (2007) Understanding armed groups and their transformations from war to politics: A collection of insider perspectives. Conference paper presented at the Sixth Pan-European Conference on International Relations, Turin. Eluard P (1929) Love, Poetry. Translation by Stuart Kendall (2007). Black Widow Press, Boston. Encyclopedia Britannica (2017) International Brigades. https://www.britannica.com/topic/ International-Brigades. Accessed 4 September 2018. European Union (2012) Mediation and Dialogue in transitional processes from non-state armed groups to political movements/political parties, Factsheet – EEAS Mediation Support Project, November 2012. Fortin K (2017a) The Accountability of Armed Groups under Human Rights Law. Oxford University Press, Oxford. Fortin K (2017b) Armed Groups and Procedural Accountability: A Roadmap for Further Thought. Yearbook of International Humanitarian Law 19:157–180. Frowein JA (2013) De Facto Regime. Max Planck Encyclopedia of Public International Law. https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1395. Accessed 15 June 2019. Gebhard J (2010) Militias. Max Planck Encyclopedia of Public International Law. https://opil. ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e338. Accessed 15 June 2019. Geneva Call (2007) Somaliland on the way to adopt a legislation banning anti-personnel mines. https://genevacall.org/somaliland-way-adopt-legislation-banning-anti-personnel-mines/. Accessed 12 September 2018. Geneva Call (2019a) Western Sahara. https://genevacall.org/country-page/western-sahara/. Accessed 12 September 2018.

44

A. Bellal

Geneva Call (2019b) Armed Non-State Actors that were engaged by Geneva Call. https:// genevacall.org/how-we-work/armed-non-state-actors/. Accessed 12 September 2018. Glazier D (2009) Wars of National Liberation. Max Planck Encyclopedia of Public International Law. https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690e442. Accessed 15 June 2019. Global Security (n.d) Lord Resistance Army. https://www.globalsecurity.org/military/world/para/ lra.htm. Accessed 1 June 2018. Gross M (2015) The Ethics of Insurgency. A critical guide to Just Guerrilla Warfare. Cambridge University Press, Cambridge. Hardin R (1995) One for All, the logic of group conflict. Princeton University Press, Princeton. Heffes E, Frenkel B (2017) The International Responsibility of Non-State Armed Groups: In Search of the Applicable Rules. Goettingen Journal of International Law 8:39–72. Honoré T (1988) The Right to Rebel. Oxford Journal of Legal Studies 8:34–54. International Committee of the Red Cross (n.d.) Customary IHL Database. https://ihl-databases. icrc.org/customary-ihl/eng/docs/v1_rul. Accessed 4 September 2018. International Committee of the Red Cross (1987) Commentary of 1987. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts. https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp? action=openDocument&documentId=7125D4CBD57A70DDC12563CD0042F793. Accessed 12 September 2018. International Committee of the Red Cross (2008) How is the term “Armed Conflict” defined in international humanitarian law? https://www.icrc.org/eng/resources/documents/article/other/ armed-conflict-article-170308.htm. Accessed 15 June 2019. International Committee of the Red Cross (2009) Interpretative guidance on the notion of Direct Participation in Hostilities under IHL. https://www.icrc.org/eng/assets/files/other/icrc-0020990.pdf. Accessed 15 June 2019. International Committee of the Red Cross (2015) What are jus ad bellum and jus in bello? https:// www.icrc.org/en/document/what-are-jus-ad-bellum-and-jus-bello-0. Accessed 15 June 2019. International Committee of the Red Cross (2016) Commentary on the First Geneva Convention. https://ihl-databases.icrc.org/ihl/full/GCI-commentary. Accessed 4 September 2018. International Crisis Group (2017) Double-edged Sword: Vigilantes in African Counter-insurgencies, Africa Report N° 251. https://d2071andvip0wj.cloudfront.net/251double-edged-sword.pdf. Accessed 15 June 2019. Kleffner (2009) The Collective Accountability of Organized Armed Groups for System Crimes. In: Nollkaemper A, Van der Wilt H (eds) System Criminality in International Law. Cambridge University Press, Cambridge, pp 238–269. Lambin J (2018) Mexico: Armed Gang Violence Sliding Into Armed Conflict? In: Bellal A (ed) The War Report: Armed Conflicts in 2017. Geneva Academy of International Humanitarian Law and Human Rights, Geneva, pp 83–91. Mastorodimos K (2015) National Liberation Movements: Still a Valid Concept (with Special Reference to International Humanitarian Law)? Oregon Review of International Law 17:71– 110. Morsink J (1999) The Universal Declaration of Human Rights: Origins, Drafting, and Intent. University of Pennsylvania Press, Philadelphia. Murray D (2016) Human Rights Obligations of Non-State Armed Groups. Hart Publishing, Oxford/Portland. Peace Insights (n.d.) Nepal: Key people and parties. https://www.peaceinsight.org/conflicts/nepal/ conflict-profile/key-people-and-parties/. Accessed 8 September 2018. Policzer P (2005) Neither terrorist nor freedom fighters. Conference paper presented at the International Studies Association Conference, Honolulu, Hawaii. https://www.academia.edu/ 639782/Neither_terrorists_nor_freedom_fighters. Accessed 15 June 2019. Rodenhaüser T (2017) Armed Groups, Rebel Coalitions, and Transnational Groups, The Degree of Organization Required from Non-State Armed Groups to Become Party to a Non-International Armed Conflict. Yearbook of International Humanitarian Law 19:3–35.

2 What Are ‘Armed Non-State Actors’? A Legal and Semantic Approach

45

Rodenhäuser T (2018) Organizing Rebellion: Non-State Armed Groups under International Humanitarian Law, Human Rights Law, and International Criminal Law. Oxford University Press, Oxford. Ruthven M (2015) Inside the Islamic State. The New York Review of Books. http://www. nybooks.com/articles/archives/2015/jul/09/inside-islamic-state/. Accessed 15 June 2019. Saul B (2008) Defending ‘Terrorism’: Justifications and Excuses for Terrorism in International Criminal Law. Australian Yearbook of International Law 25: 177–226. Schneckener U (2007) Armed Non-State Actors and the Monopoly of Force. In: Bailes A et al. (eds) Revisiting the State Monopoly on the Legitimate Use of Force. Geneva Centre for the Democratic Control of Armed Forces, Policy Paper 24:10–18. https://www.dcaf.ch/sites/ default/files/publications/documents/PP24_Bailes_Schneckener_Wulf.pdf. Accessed 15 June 2019. Schoiswohl M (2001) De facto regimes and human rights obligations—the twilight zone of public international law? Austrian Review of International and European Law 6:45–90. Shultz RH et al. (2004) Armed Groups: A Tier-One Security Priority. USAF Institute for National Security Studies USAF Academy, Colorado. Sinno AH (2011) Armed groups’ organizational structure and their strategic options. International Review of the Red Cross 93:311–332. Stanford University (n.d.) Mapping Militant Organizations, United Self-Defense Forces of Colombia. http://web.stanford.edu/group/mappingmilitants/cgi-bin/groups/view/85. Accessed 1 June 2018. Swiss Confederation (2015) Notification to the Governments of the States parties to the Geneva Conventions of 12 August 1949 for the Protection of War Victims. https://www.eda.admin.ch/ dam/eda/fr/documents/aussenpolitik/voelkerrecht/geneve/150626-GENEVE_en.pdf. Accessed 1 June 2018. Swiss Federal Department of Foreign Affairs and International Committee of the Red Cross (2009) The Montreux Document on pertinent international legal obligations and good practices for States related to operations of private military and security companies during armed conflict. https://www.icrc.org/eng/assets/files/other/icrc_002_0996.pdf. Accessed 15 June 2019. Thompson PG (2014) Armed groups. The 21st century threat. Rowman and Littlefield, London. United Nations (n.d.) The United Nations and Decolonization. On-Self-Governing Territories. http://www.un.org/en/decolonization/nonselfgovterritories.shtml. Accessed 12 September 2018. UN General Assembly (1948) Universal Declaration of Human Rights. UN Doc. A/RES/3/217A. UN General Assembly (1970) Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations. UN Doc. A/RES/25/2625. UN Human Rights Council (2011) Report of the International Commission of Inquiry to investigate all alleged violations of international human rights law in the Libyan Arab Jamahiriya. UN Doc. A/HRC/17/44. UN International Law Commission (2001) Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, Yearbook of the International Law Commission, Vol. II, Part Two. UN Secretary-General (2017) Reports on Children and Armed Conflict. UN Doc. A/72/361-S/ 2017/821. UN Security Council (2004) Resolution 1540. UN Doc. S/RES/1540 (2004). Van Essen J (2012) De Facto regimes in international law. Utrecht Journal of International and European Law 28:31–49. Van Steenberghe R (2018) Les interventions militaires récentes contre le terrorisme international. Annuaire Français de droit international. Forthcoming (on file with the author). Weber (1946) Politics as vocation. http://www.ucc.ie/archive/hdsp/Weber_Politics_as_Vocation. htm. Accessed 4 September 2018. Weinstein J (2006) Inside Rebellion, the politics of insurgent violence. Cambridge University Press, Cambridge.

46

A. Bellal

Wolfrum R, Philipp C (2002) The Status of the Taliban: Their Obligations and Rights under International Law. Max Planck Yearbook of United Nations Law 6:559–601. Zegveld L (2002) The accountability of armed opposition groups in international law. Cambridge University Press, Cambridge.

Annyssa Bellal holds a Ph.D., Graduate Institute of International and Development Studies. She is a Senior Research Fellow and Strategic Adviser on IHL, Geneva Academy of International Humanitarian Law and Human Rights.

Chapter 3

Beyond Banning Mercenaries: The Use of Private Military and Security Companies Under IHL Martina Gasser and Mareva Malzacher

Contents 3.1 Introduction........................................................................................................................ 3.2 The Nature of the Beast: Typology and Definition.......................................................... 3.2.1 Definition ................................................................................................................ 3.2.2 Typology................................................................................................................. 3.3 Applying IHL to PMSCs .................................................................................................. 3.3.1 The Question of Status, Rights and Obligations of PMSC Personnel Under IHL.......................................................................................................................... 3.4 Approaches to Regulation ................................................................................................. 3.4.1 The Legally Binding Approach: The UN Draft Convention ................................ 3.4.2 The Soft Law Approach......................................................................................... 3.4.3 National Approaches .............................................................................................. 3.5 Conclusion ......................................................................................................................... References ..................................................................................................................................

48 49 49 50 57 57 67 67 68 71 73 74

Abstract In the aftermath of several incidents involving private military and security companies (PMSCs) in the wars in Iraq and Afghanistan, many have argued that PMSCs were operating in a ‘legal black hole’ where no law applied. Since then, the use of PMSCs in war zones has continued and—due to new circumstances—evolved. Indeed, States still heavily rely on contractors in wars all around the world and due to a digitalization process PMSCs fulfil an ever-broader The views and opinions expressed in this chapter are those of the authors alone and do not reflect the official policy or position of the FDFA. M. Gasser (&)
M. Malzacher Swiss Federal Department of Foreign Affairs (FDFA), Bern, Switzerland e-mail: [email protected] M. Malzacher e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 E. Heffes et al. (eds.), International Humanitarian Law and Non-State Actors, https://doi.org/10.1007/978-94-6265-339-9_3

47

48

M. Gasser and M. Malzacher

range of functions. Despite the clear picture of the private security sector that many believe they have, the term ‘PMSC’ now describes a wide array of private actors with very different profiles. In tandem, a regulation for PMSCs has also been developed in recent years. In 2008, the Montreux Document was signed. This instrument defines how international law applies to the activities of PMSCs when they are operating in an armed conflict zone. Two years later, the International Code of Conduct for Private Security Service Providers was finalized. At the same time, several countries have passed regulations on the use of PMSCs on their own territory and abroad. This chapter examines and categorizes the existing market, as well as new forms of private security services that have developed in recent years. Furthermore, it analyses how international humanitarian law can and should be applied to the different types of services offered. Finally, it provides an overview of the existing international initiatives aimed at regulating PMSCs and briefly examines, in this respect, different examples of national regulation.







Keywords PMSC Private Security Military Services Multi-Stakeholder Initiative Mercenaries

3.1





Montreux Document


Introduction

Private military and security companies (PMSCs) were a hot topic in the years following the conflicts in Iraq and Afghanistan due to several incidents and human rights abuses involving foreign PMSCs. In subsequent years, several international initiatives attempted to mitigate the risks posed by PMSCs. In addition, legislators in many countries addressed the challenges presented by PMSCs with different kinds of legislations. Nevertheless, PMSCs continue to operate worldwide in a diverse array of different environments and for various clients. The shifts in the international security environment have undoubtedly contributed to this upward trend for private security service providers. PMSCs provide a wide range of services to armed and security forces, including guarding, security consulting and logistical support. In addition, PMSCs providing combat services, previously written off by many authors, have started to resurface. Indeed, in the summer of 2017, Erik Prince, founder of the United States (US) company formerly known as Blackwater, suggested to President Donald Trump that PMSCs should entirely replace US soldiers engaged in Afghanistan.1 While this proposal was ultimately dismissed, other countries appear to be discovering the perks of using PMSCs in warzones.2 Apart from those traditional types of protection 1

Prince E (2017) Contractors, Not Troops, Will Save Afghanistan, The New York Times, 30 August 2017. https://www.nytimes.com/2017/08/30/opinion/erik-prince-contractors-afghanistan. html. Accessed 3 December 2018. 2 Examples of this development include the Russian PMSC ‘Wagner Group’ (see footnote 45 below) and the Turkish PMSC SADAT AS International Defense Consulting. Jacinto L (2017)

3 Beyond Banning Mercenaries: The Use of Private Military …

49

services associated with PMSCs, the industry has proven to be very adaptable to the different circumstances posed by new legislation, new technology and the changing geopolitical environment. In addition, due to the growing market, other actors edge into the private security sector. New types of services have emerged—such as a wide array of services connected to warfare in cyberspace and intelligence firms who collect information for military and internal security entities alike. This chapter aims to give a short overview of the traditional and new services provided by PMSCs, organizing them into a concise typology. It then assesses how international humanitarian law (IHL) is applicable to the different types of service providers. Finally, it offers an overview of the existing international initiatives aimed at regulating PMSCs and briefly examines different examples of national legislations in this respect. Due to the limited space, this chapter will not consider questions of State responsibility or of the direct applicability of human rights law to PMSCs.

3.2

The Nature of the Beast: Typology and Definition

This section analyzes existing definitions of the term ‘PMSC’ and proposes its own working definition. Following this, it identifies the types of services offered by PMSCs and organizes them into different categories.3

3.2.1

Definition

The definition of PMSCs is crucial, but, at the same time, it has been a constant stumbling block in debates concerning their regulation. To this date, there is no universally accepted definition of the term. Indeed, this notion is used to refer to a variety of legal entities that are hired by a diverse range of clients and that offer an array of different services.4 The Draft International Convention (thereinafter: Draft Convention) proposed by the United Nations (UN) Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination (hereinafter: the Working Group on the use of mercenaries)5 – established by the UN Commission on Human Rights in 2005 – defines a PMSC as a corporate entity which provides, on a compensatory basis, military and/or security services by physical persons and/or legal entities. ‘Military services’ are qualified as: Turkey’s Post-Coup Purge and Erdogan’s Private Army, Foreign Policy, 13 July 2017. http:// foreignpolicy.com/2017/07/13/turkeys-post-coup-purge-and-erdogans-private-army-sadat-perince k-gulen/. Accessed 3 December 2018. 3 The notion of mercenaries will be discussed in Sect. 3.3.1.1 of this chapter. 4 Tonkin 2011, p 39. 5 UN Human Rights Council 2010.

50

M. Gasser and M. Malzacher specialized services related to military actions including strategic planning, intelligence, investigation, land, sea or air reconnaissance, flight operations of any type, manned or unmanned, satellite surveillance, any kind of knowledge transfer with military applications, material and technical support to armed forces and other related activities.6

The term ‘security services’, on the other hand, refers to armed guarding or protection of buildings, installations, property and people, any kind of knowledge transfer with security and policing applications, development and implementation of informational security measures and other related activities.7

These definitions are quite specific and include a broad range of services. A differing description of private military and security services is provided by the Montreux Document (2008) which states that military and security services include, in particular, armed or unarmed guarding and protection of persons and objects; maintenance and operation of weapons systems; guarding, caring for, and transporting prisoners; operating prison facilities; and assisting in operating camps for prisoners of war (POW) or civilian detainees and advice to or training of local forces and security personnel.8

For the purpose of the present chapter, PMSCs are defined as private legal entities that provide military and/or security services, as defined by the Montreux Document (2008), irrespective of how they describe themselves. Additionally, due to their similarity to other military services, this chapter also includes certain elements of the Draft Convention in order to broaden the definition of the Montreux Document (2008). Thus, operational and logistical support for armed or security forces9 are considered to be military and/or security services as well.

3.2.2

Typology

As noted by Percy, the sector of private security has gone through several phases of transformation in the last 30 years—from PMSCs contracted in the 1990s to fight on behalf of fragile States, to PMSCs being hired to provide close armed protection, to

6

Ibid., Article 2(b). Ibid., Article 2(c). 8 The Montreux Document on pertinent international legal obligations and good practices for States related to operations of private military and security companies during armed conflict (2008), Preface number 9. https://www.eda.admin.ch/dam/eda/en/documents/aussenpolitik/ voelkerrecht/Montreux-Broschuere_en.pdf. Accessed 3 December 2018. For more on the Montreux Document, see below Sect. 3.4.2.1. 9 The Swiss law also includes these elements within its definition of private security services. See Article 4(a)(6) of the Swiss Federal Act on Private Security Services provided Abroad (PSSA) of 27 September 2013, entered into force on 1 September 2015, SR 935.41. https://www.admin.ch/ opc/en/classified-compilation/20122320/index.html. Accessed 3 December 2018. 7

3 Beyond Banning Mercenaries: The Use of Private Military …

51

firms diversifying their activities to areas such as maritime security (i.e. protection against pirate attacks), protection of humanitarian aid workers or risk analysis.10 In his famous book ‘Corporate Warriors. The Rise of the Privatized Military Industry’, Singer categorized PMSCs using what he refers to as the ‘Tip of the Spear’ typology.11 According to this model, PMSCs fall into different categories depending on how far or close their services are to the frontline. In a geographical sense, he differentiates between firms active in the broader theater of war, the theater of operations, and the area of operations (i.e. the tactical battlefield).12 Using this typology, Singer organizes PMSCs into three categories: Military Provider Firms, Military Consultant Firms and Military Support Firms.13 While Singer bases his categories mainly on the proximity to an armed conflict and on the environment in which the service is provided in, this chapter adds the nature of the client as a distinguishing factor. Accordingly, this chapter distinguishes between four categories of services: Private Security Services, Private Military and Security Consulting Services, Private Military and Security Support Services and Private Military Services. Furthermore, in light of the variety of corporate structures that companies can choose from, this chapter follows a functional approach by referring to the services provided rather than by referring to the type of company or to the way a company classifies itself. Based on the definition above, there is a broad variety of services that could be categorized as private military or security services. The following typology (Fig. 3.1) attempts to list the most important ones and organizes them into different categories. At the same time, it is clear that—given the broad range of services provided and the dynamic nature of the industry—not all services that are provided by private companies can be listed. In each category, a special focus will be put on services provided in cyber-space.14

3.2.2.1

Private Security Services

Private security services, in the narrow sense of the term, tend to be defensive services that can be provided by armed or unarmed personnel. Clients of all sorts hire these services, such as governments, NGOs, firms or individuals. The International Code of Conduct for Private Security Service Providers (ICoC),15 for 10

Percy 2012, p 945. Singer 2003, pp 91–95. 12 Ibid., p 91. 13 Ibid. 14 For a ‘Tip of the Spear’ framework regarding offensive cyber operations, see Maurer 2018, p 15. 15 The ICoC is the result of a multi-stakeholder initiative: it is supported by States, companies active in the private security sector as well as non-profit organizations. It contains standards and principles for the responsible provision of private security services. It aims to create better governance, compliance and accountability of private security companies. 11

52

M. Gasser and M. Malzacher

Fig. 3.1 ‘Categories of private military or security services’

instance, defines security services as the guarding and protection of persons and objects – such as convoys, facilities, designated sites, property or other places – whether armed or unarmed, or any other activity for which company personnel are required to carry or operate a weapon in the performance of their duties.16 This definition focuses mainly on the provision of services that are not inherently military, but that can be provided to any paying customer. The Code applies to activities undertaken in ‘complex environments’,17 meaning that it is primarily applicable to services provided in ‘any areas experiencing or recovering from unrest or instability, whether due to natural disasters or armed conflicts, where the rule of law has been substantially undermined, and in which the capacity of the state authority to handle the situation is diminished, limited, or non-existent’.18 16 International Code of Conduct for Private Security Service Providers, 9 November 2010. https://www.icoca.ch/sites/all/themes/icoca/assets/icoc_english3.pdf. Accessed 3 December 2018. For more on the ICoC, see Sect. 3.4.2.2 below. 17 Ibid., Section D, para 13. 18 Ibid., Section B. Companies that do not operate in complex environments, however, may still adopt the Code of Conduct and become members of the Association which was created in order to promote, govern and oversee implementation of the ICoC. See Sect. 3.4.2.2.

3 Beyond Banning Mercenaries: The Use of Private Military …

53

Typically, large multinational corporations, such as G4S, Constellis, Garda World or Prosegur, execute security services for a wide range of industries and customers across the world. Besides big corporations, a whole array of small PMSCs also provide security services, usually at local or regional level.19 With regard to cyber security, one can argue that these types of security services can also be translated into cyberspace. Dunn-Cavelty, for example, notes that ‘almost all critical cyber-assets are in the hand of private enterprises nowadays’.20 These assets may be privately or publicly owned. Due to the complexity of the technology and the operational techniques of computer network attacks, many private actors as well as States hire companies or individuals to help them defend their computer systems.21 Liu, however, argues that the cyber realm is an ‘offense dominant environment’ and that private actors therefore cannot only offer defensive services.22 The demand for cyber security services has attracted new providers with diverse profiles to the market, from more traditional PMSCs23 to business consulting firms.24

3.2.2.2

Private Military and Security Consulting Services

Any kind of advice and training to armed or security forces fall under this category. The aim of these services is to transfer strategic, operational and/or organizational knowledge to those entities.25 A historic example of a military consulting provider is the US-company Military Professional Resources Inc. (MPRI),26 which drew its workforce from high-level retired US military personnel. MPRI was notably famous for providing military training and advice to Croatian Armed Forces at the beginning of the 1990s.27

19

See for example regarding the private security service market in Africa, DCAF 2017b, p 35 and

ff. 20

Dunn-Cavelty 2016, p 89. Woltag 2014, p 238. With regard to private actors, there is an ongoing discussion if private companies may, on behalf of themselves or other companies, engage in what is called ‘active cyber defense’. For more information see Hoffman and Levite 2017. 22 Liu 2015, p 3. 23 Control Risk, a UK based security company, offers a range of services with regard to cyber security. Control Risk n.d. 24 In fact, the ‘big four’ – Ernst & Young, Deloitte, KPMG, PricewaterhouseCoopers – consulting firms are now also the largest security consulting firms with a combined revenue of about 8.5 billion dollars. Consultancy.uk 2017, The world’s top 10 largest cybersecurity | security consulting firms, 4 September 2017. https://www.consultancy.uk/news/13927/the-worlds-top-10-largestcybersecurity-security-consulting-firms. Accessed 3 December 2018. 25 Singer 2003, p 95. Dunigan on the other hand includes training and advice in the category of ‘support functions’. Dunigan 2016, p 241. 26 MPRI was established in 1987. As of 2012, it has been integrated to the independent company Engility. See Engility 2018. https://www.engility.com/about-us/history/. Accessed 3 December 2018. 27 For a detailed account of MPRI’s operations in Croatia, see Singer 2003, p 124. 21

54

M. Gasser and M. Malzacher

Security consulting services, however, are not offered exclusively to armed forces. In addition, many security forces on a national and regional level are relying on the services of consulting firms in order to support them in recovering from political instability or conflict, in particular in the area of security sector reform.28 As an example, DynCorp International, another well-known US company, provides training to police forces in post-conflict States, among other security activities.29 With respect to cyber security, private companies offer different kinds of consulting services. For example, they play a growing role in assisting States in identifying the origin of cyber security attacks.30 Many companies also offer a range of advisory services to States, from security strategy, to risk analysis, to penetration tests.31 Furthermore, large defense companies offer defense training courses in so-called ‘cyber ranges’ which simulate cyber-attacks, where the participants are trained to react to cyber-attacks in the same way that a shooting range is used to train participants in the use of firearms.32

3.2.2.3

Private Military and Security Support Services

Private military and security support services providers, which specialize in secondary tasks, constitute a large and underestimated share of the security industry in terms of scope, revenue and subsectors.33 Secondary tasks, in this context, encompass nonlethal aid and assistance, such as general logistics, technical support and intelligence.34 Logistical support includes services such as transporting, storing and transshipping goods and persons; technical maintenance and enhancement of equipment and vehicles; set-up, maintenance and operation of infrastructure; and the securing of supplies as long as they are connected to the tasks of the armed or security forces.35

28

DCAF 2017b, p 36. See DynCorp International n.d. 30 For example, the leak of e-mails from the US Democratic National Committee in 2016, attributed to the group FancyBear and, subsequently, to Russian secret services, was identified by the US cybersecurity firm Crowdstrike. Fryer-Biggs Z (2017) Who Is Attacking America Now? Russian Group Behind DNC Hack Targets Cyber Experts, Newsweek, 3 November 2017. http:// www.newsweek.com/who-attacking-america-russian-group-behind-dnc-hack-700607. Accessed 23 April 2019. 31 One example of a large company that provides these types of services is Booz Allen Hamilton. Booz Allen Hamilton n.d. 32 See, for example, RUAG Group n.d. 33 Singer 2003, p 97. 34 Seiberth 2014, p 53. 35 See Federal Department of Foreign Affairs 2016. Under the Swiss PSSA 2015, above n. 9, catering troops or laundry services are not considered to constitute military or logistical support as they lack a direct connection to the primary functions of the armed forces. 29

3 Beyond Banning Mercenaries: The Use of Private Military …

55

Additionally, due to the increasing complexity of equipment, the need for specialists to provide technical support services and maintain technical weapons systems is high and growing.36 At the same time, military forces are becoming more and more dependent on high-tech systems created and developed by the private sector. In most cases, such technology requires an additional labor force dedicated to the use, maintenance, and sometimes operation of these new systems, such as with drones or fighter jets.37 As a consequence, the IT infrastructures of armed and security forces have grown more complex. As several States lack the internal know-how to keep these IT infrastructures up to date, many of them have to rely on private actors.38 In this respect, large industrial corporations such as Lockheed Martin,39 Raytheon40 and General Dynamics41 supply armed forces across the world with sophisticated technological products and provide logistics, repair and maintenance services, including active support in the operational area. In addition, these same companies have expanded their services to include cybersecurity.42 With regards to intelligence, private companies increasingly sell digital espionage services, enabling even security and military forces with a lower budget and fewer capabilities to conduct sophisticated cyber-operations like electronic eavesdropping.43 Although these contractors might not correspond to the image one might have of a private security agent, their expertise and strategic capabilities can strongly influence the outcome of a conflict.44 Therefore, Private Support Services Providers carry out crucial tasks for armed and security forces, the importance of which should not be underestimated when talking about PMSCs.

36

Cameron and Chetail 2013, p 447; and Tonkin 2011, p 45. Erbel and Kinsey 2016, p 73. 38 Woltag 2014, p 238. 39 In 2014, about 17,000 of Lockheed Martin’s employees worked in logistics and sustainment related functions, representing 26% of its total revenue. Lockheed Martin 2017. In addition, Lockheed Martin offers Special Operations Forces Global Logistics Support Services, which is the US Special Operations Command’s (USSOCOM) largest service contract, providing a wide range of tailored logistics, maintenance and sustainment services. See Lockheed Martin n.d. 40 According to their homepage, Raytheon provides operation, maintenance and systems sustainment services and delivers full life-cycle modernization and support for air, land and sea-based electronics and weapons systems to 542 sites in 80 countries. Raytheon n.d. 41 General Dynamics’ European Land Systems (GDELS) provides individual logistic and maintenance services through active support in the operational area. It tailors its Integrated Logistic Support solution to each of its customers’ specific requirements on the advice of their specialists. See GDELS n.d. 42 Maurer 2018, p 18. 43 Mazzeti et al. (2019) A New Age of Warfare: How Internet Mercenaries Do Battle for Authoritarian Governments, The New York Times, 21 March 2019. https://www.nytimes.com/ 2019/03/21/us/politics/government-hackers-nso-darkmatter.html. Accessed 9 May 2019. 44 Tonkin 2011, p 45; and Dunigan 2016, p 242. 37

56

3.2.2.4

M. Gasser and M. Malzacher

Private Military Services

Companies offering private military services, in the narrow sense of the word, are generally hired by States in order to assist their armed forces with core military tasks. They consist of armed individuals who are contractually authorized to use their weapons for offense alongside regular military troops. They may assist conventional troops that are close to the frontline, as well as forces who launch attacks using high tech weapons systems.45 A number of high-profile notorious private military companies in this category, such as Executive Outcomes, Sandline International and Blackwater, are no longer operational.46 Nonetheless, private military providers that offer combat services still exist and intervene in armed conflicts, albeit covertly. A current example is the alleged involvement of the Russian PMSC Wagner Group in the Syrian and Ukrainian conflicts.47 It is less clear, however, what core military tasks are in the realm of cyberspace. Indeed, the very notion of ‘war’ in cyber space is still being debated by academics, lawyers and militaries.48 One can nevertheless envisage examples of offensive acts in cyber space that could be outsourced to private actors. These include, but are not limited to, the development and delivery of weaponized codes, the use of

45

Tonkin 2011, p 40. Executive Outcomes officially dissolved in January 1999, allegedly due to, among other things, the ‘Regulation of Foreign Military Assistance Bill’ of 1997 in South Africa regarding the activities of private military services. Singer 2003, p 117, with further references. Sandline International ceased its operations in April 2014 because of ‘[t]he general lack of governmental support for Private Military Companies willing to help end armed conflicts’. See Sandline n.d. Blackwater was first renamed ‘Xe Services LLC’, was then purchased by private investors in 2011, and then renamed again to ‘Academi’. Academi is now part of Constellis Holdings. Tran M (2014) Blackwater considered itself above the law, US state department was warned, The Guardian, 30 June 2014. https://www.theguardian.com/world/2014/jun/30/blackwater-security-firm-above-lawus-state-department-killed-17-iraqis. Accessed 3 December 2018. 47 Wagner Group is a PMSC based in Russia which reportedly plays a key role in the wars in Syria and Ukraine. On 7 February 2018, it is estimated that about 100 of Wagner’s employees were killed in retaliatory US airstrikes near the town of Deir al-Zour in Syria. Taylor A (2018) What we know about the shadowy Russian mercenary firm behind an attack on U.S. troops in Syria, The Washington Post, 23 February 2018. https://www.washingtonpost.com/news/ worldviews/wp/2018/02/23/what-we-know-about-the-shadowy-russian-mercenary-firm-behind-the -attack-on-u-s-troops-in-syria/?noredirect=on&utm_term=.f1a101823844. Accessed 3 December 2018. The Russian government denied any connection to the casualties. Nonetheless, there are strong indicators that the Wagner Group is operating on behalf or, at the very least, with the knowledge of the Russian government. Hauer N (2018) Russia’s Favorite Mercenaries, The Atlantic, 27 August 2018. https://www.theatlantic.com/international/archive/2018/08/russianmercenaries-wagner-africa/568435/. Accessed 7 February 2019. Before their rather public involvement in Syria, there were reports about Wagner’s involvement in the war in Ukraine as well. The Economist (2017) How “Wagner” came to Syria, 2 November 2017. https://www. economist.com/news/europe/21730873-captured-soldiers-cast-light-work-shadowy-group-howwagner-came-syria. Accessed 7 February 2019. 48 Schmitt 2017, p 1. 46

3 Beyond Banning Mercenaries: The Use of Private Military …

57

vulnerabilities to gain unauthorized access to a system or the design of malware to attack an enemy system.49

3.3

Applying IHL to PMSCs

In the last couple of years, a lot has been written about the use of PMSCs in armed conflict and the applicability of IHL to their activities. While initially some had claimed that PMSCs operated in a legal vacuum,50 this view has come to be thoroughly debunked by various authors51 and by the drafters of the Montreux Document (2008). However, given their diverse nature, it is difficult to make a general assessment of all the rules pertaining to PMSCs. In light of the typology of services explained above, this section will focus on the rules of IHL that are applicable to PMSCs and their personnel.

3.3.1

The Question of Status, Rights and Obligations of PMSC Personnel Under IHL

With regard to individual employees, the question of status, rights and obligations under IHL needs to be examined. As the Montreux Document (2008) puts it, ‘the status of the personnel of PMSCs is determined by international humanitarian law, on a case-by-case basis, in particular according to the nature and circumstances of the functions in which they are involved’.52 First of all, one needs to note that all individuals who carry out activities in connection with an armed conflict, irrespective of their status, can be held responsible for breaches of IHL that incur individual criminal responsibility.53 The question of status, however, is particularly relevant in determining the set of rules applicable to the protection and treatment of PMSC personnel. Since status very much depends on the facts, PMSC personnel may fall into different categories under different circumstances.54

49

Ibid., p 430; Woltag 2014, pp 242–243. Singer 2004, pp 524–525. 51 Cameron and Chetail 2013, p 672, Carmola 2010, p 99. 52 The Montreux Document on pertinent international legal obligations and good practices for States related to operations of private military and security companies during armed conflict (2008), Statement 24. https://www.eda.admin.ch/dam/eda/en/documents/aussenpolitik/ voelkerrecht/Montreux-Broschuere_en.pdf. Accessed 3 December 2018. 53 Melzer 2013, p 99; Sassòli 2013, p 118. 54 Debarre 2016, p 442. 50

58

M. Gasser and M. Malzacher

3.3.1.1

Mercenaries

When dealing with PMSCs, one is often confronted with the misconception that they are tantamount to mercenaries, a label that is used, as noted by Clapham, to express the speaker’s disapproval rather than to describe an individual that satisfies a particular legal definition.55 Whereas the word ‘mercenary’ in popular language tends to represent any paid foreign agent or soldier who has morally questionable motives to take part in combat, it actually has a well-defined meaning in international law.56 However, the legal definition of mercenarism rarely applies to the various forms of modern PMSCs. According to Article 47(2) of the 1977 Additional Protocol I to the Geneva Conventions of 1949 (AP I), a mercenary is any person who: (a) Is specially recruited locally or abroad in order to fight in an armed conflict; (b) Does, in fact, take a direct part in the hostilities; (c) Is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party; (d) Is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict; (e) Is not a member of the armed forces of a Party to the conflict; and (f) Has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

Article 1(a)–(e) of the International Convention against the Recruitment, Use, Financing, and Training of Mercenaries (1989)57 (Convention on Mercenaries) largely repeats the abovementioned definition of Article 47(2)(a)–(f) of AP I. In Article 2(a)(i)–(ii), however, it adds language specifying that a mercenary is also any person who is recruited for the purpose of overthrowing a government, undermining the constitutional order or the territorial integrity of a State. In addition, the Convention on Mercenaries is—contrary to AP I (1977)—not limited to international armed conflicts (IACs) but also includes non-international armed conflicts (NIACs).58 Its scope of application is nonetheless limited by the fact that only 36 States have ratified it. Another notable difference lies in the legal consequences for a person who is deemed to be a mercenary: while Article 47(1) of AP I only states that a mercenary loses his or her combatant privilege (i.e. that cannot be considered as a prisoner of war), Articles 2–4 of the Convention on Mercenaries imposes criminal liability for acts, and attempted acts, of mercenarism and the

55

Clapham 2006, p 299. Rona 2017. 57 International Convention against the Recruitment, Use, Financing and Training of Mercenaries, opened for signature 4 December 1989, 2163 UNTS 75, entered into force 20 October 2001. 58 UN General Assembly 1989, p 4. 56

3 Beyond Banning Mercenaries: The Use of Private Military …

59

recruitment, use, financing or training of mercenaries, as well as being an accomplice thereto. Most modern PMSCs specifically forbid their personnel to take any active part in armed conflict.59 Even if there are incidents where personnel actively participate in hostilities, many would still fail to meet the first criteria of the definition of a mercenary under international law because they were not specifically recruited to do so.60 In addition, the mental element regarding the contractor’s desire for private gain and the requirement of substantial excess in material compensation would be very hard to prove.61 Furthermore, in order for a PMSCs’ personnel to qualify as mercenaries under Article 47(2) of AP I, they cannot be nationals of a party to the conflict. However, it is not clear whether in the case of PMSCs this refers to the State of incorporation of the company or to the nationality of the individual. The latter interpretation leads to the unsatisfactory scenario where only certain personnel with a specific nationality could be considered mercenaries while other personnel of the same company would not fulfil the criteria.62 Considering the various types of companies and their services in light of the typology outlined above, the personnel of companies providing private military services are the ones most likely to fulfil the criteria of mercenaries under international law. However, the example of the aforementioned Russian PMSC Wagner Group is a case that deserves attention: although it is reportedly taking part in hostilities in Syria and the Ukraine and is paid comparably high wages,63 its membership seems to consist in large part of Russian nationals,64 and since Russia is arguably participating in both conflicts, its personnel fail to meet the criteria that mercenaries cannot be nationals of a party to the conflict.65 59 See for example Point 7.6 of the Constellis Group’s Code of Conduct, which states that ‘… as a private company employing private citizens to work in hostile areas that often have a large military presence, the Company and its employees are considered Non-Combatants under the Law of War. Company employees must never take actions that would result in their being considered Unlawful Combatants by virtue of direct participation in an armed conflict or armed hostilities.’ Constellis 2017. The Constellis Group has taken over several major PMSCs in recent years including Academi, Olive Group and Triple Canopy. 60 Doswald-Beck 2007, p 122. 61 Sheehy et al. 2008, p 155. 62 Doswald-Beck 2007, p 123. The two final criteria regarding membership, or rather non-membership in the armed forces, will be discussed in the following section. 63 Neumann W and Dobbert S 2017 Putin’s Mercenaries, Zeit Online, 6 February 2017. http:// www.zeit.de/politik/ausland/2017-02/russia-vladimir-putin-military-mercenary-soldiers-syria/ komplettansicht. Accessed 3 December 2018. 64 Ibid. 65 Recent reports indicate that Wagner Group is now also active in African Countries such as the Central African Republic. Seddon and Wilson 2018, Journalists’ deaths highlight Russia’s moves into Africa, Financial Times, 21 August 2018. https://www.ft.com/content/7e55b796-9cac-11e89702-5946bae86e6d (link no longer available). Accessed 3 December 2018. For Sudan, see Stratfor 2018 Russia Revisits an Old Cold War Battleground, 15 January 2018. https://worldview. stratfor.com/article/russia-revisits-old-cold-war-battleground, Accessed 6 February 2019. And for Venezuela, Roth A 2019 Russian mercenaries reportedly in Venezuela to protect Maduro, The

60

3.3.1.2

M. Gasser and M. Malzacher

PMSC Personnel and Combatant Status in International Armed Conflicts

Statement 26 of the Montreux Document (2008) regarding the personnel of PMSCs reads as follows: The personnel of PMSCs: a) are obliged, regardless of their status, to comply with applicable international humanitarian law; (b) are protected as civilians under international humanitarian law, unless they are incorporated into the armed forces of a State or are members of organized armed forces, groups or units under a command responsible to the State; or otherwise lose their protection as determined by international humanitarian law; (c) are entitled to prisoner-of-war status in international armed conflict if they are persons accompanying the armed forces meeting the requirements of Article 4A(4) of the Third Geneva Convention …

It follows from this statement that in order to assess the legal regime applicable to PMSC personnel, one has to first determine whether or not they are incorporated into the armed forces of a State or are members of organized armed forces under a command responsible to a State, thus qualifying for combatant status. Thus, this section will consider the requirements of Article 4(A) of Geneva Convention III of 1949 (GC III) for civilians accompanying the armed forces of States. An incorporation of PMSC personnel into the armed forces of a belligerent State could either take place de jure or de facto. The issues of incorporation and combatant status only arise when a State hires a PMSC.66 Relevant here are the two legal bases that define the notion of combatants in IHL: Articles 4(A)(1)–(2) of GC III and 43 of AP I. According to Article 4(A)(1) of GC III, ‘[m]embers of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces’ are considered to be combatants. Therefore, the question is what steps States need to take to incorporate PMSC personnel into their armed forces. IHL does not provide an answer to this question; rather, this depends on national laws and procedures regarding the incorporation of personnel into the armed forces.67 While such incorporation has previously taken place for instance, in Sierra Leone in 1995,68 this is not the norm. Schmitt argues that the mere fact that in most cases no formal recruitment has taken place evidences that States do not consider that PMSC personnel enjoy the status conferred by Article 4(A)(1).69

Guardian, 25 January 2019. https://www.theguardian.com/world/2019/jan/25/venezuela-madurorussia-private-security-contractors. Accessed 6 February 2019. Since the Russian military is not actively involved in the conflicts in those countries, the assessment of the status of Wagner Group employees may differ depending of the kinds of services provided in those contexts. 66 Sossai 2009, p 3. 67 Cameron and Chetail 2013, p 390. 68 Singer 2003, pp 110–115. 69 Schmitt 2005, p 524.

3 Beyond Banning Mercenaries: The Use of Private Military …

61

Others rule out such incorporation altogether due to the fact that PMSCs are often hired to ensure flexibility, decrease costs associated with permanent personnel and avoid the various responsibilities that arise from an employer/employee relationship.70 Whatever the reasoning, nearly all authors agree that PMSCs are in most cases not de jure members of the armed forces of States. Article 4(A)(2) of GC III, on the other hand, applies to ‘members of other militias and members of other volunteer corps’ that are not part of the regular armed forces. To fall within this provision’s purview, five conditions that pertain to the relevant group – i.e. the PMSC in this case – must be satisfied. First of all, the group has to belong to a party to a conflict, which implies a de facto link between the group and the State.71 In the case of PMSCs, some argue that if those hired by a State carry a card that entails certain recognition, this is a strong enough link for them to ‘belong’ to a party of the conflict.72 Cameron and Chetail, however, maintain that the decisive factor must be that a State party accepts that a group fights on its behalf.73 In addition, the group has to be under a command responsible for its subordinates. As Schmitt points out, modern PMSCs in the military sector may have a clear hierarchy and provide supervision comparable to a military command.74 Moreover, the group has to wear a fixed distinctive sign recognizable at a distance. Although there have been historical instances where PMSCs wore uniforms, in recent conflicts this has rarely been the case.75 Article 4(A)(2) of GC III further provides that the members of the group have to carry their arms openly. This requirement is normally fulfilled in the case of PMSCs, who are in fact carrying arms.76 Finally, they have to conduct their operations in accordance with the laws and customs of war. Although there have been infamous incidents where PMSC personnel clearly violated IHL, entailing individual criminal responsibility, PMSCs overall have not shown a general and systematic disregard for IHL.77 It follows from this analysis that even though PMSCs might in certain situations 70

Doswald-Beck 2007, p 118; Cameron and Chetail 2013, p 391. Pictet 1960, p 57; Doswald-Beck 2007, p 119, who notes that, in practice, States often issue cards to private personnel that indicates their affiliation with those States and that this should satisfy the requirement of a de facto link. 72 Doswald-Beck 2007, p 119. However, she questions whether the same would be the case for a PMSC that is subcontracted by another company. 73 Cameron and Chetail, pp 393–401. The authors discuss and dismiss the idea that PMSCs must be under the effective or overall control of a State in order to belong to it. In addition, they argue that the criterion that States accept that PMSC fight on their behalf is the only logical distinction from the category of civilians that accompany the armed forces. 74 Schmitt 2005, p 529; and Boldt 2005, p 527. 75 Cameron and Chetail 2013, p 404. For example, the US Department of Defense (DoD) generally does not allow contractor personnel to wear military uniforms. However, for operational reasons, commanders can authorize contractor personnel to wear standard uniform. US Department of Defense 201, DoD Instruction 3020.41, p 20. https://www.esd.whs.mil/Portals/54/ Documents/DD/issuances/dodi/302041p.pdf. Accessed 17 June 2019. 76 Ibid., p 405. 77 Sossai 2009, p 4. 71

62

M. Gasser and M. Malzacher

satisfy some of the requirements of Article 4(A)(2) of GC III, they will only very rarely fulfil them all.78 In addition, some authors argue that the historical origin of this provision, which was created in order to legitimize resistance groups that fought against occupying forces in World War II, excludes its application to PMSCs altogether.79 Article 43 of AP I attempts to establish a common legal basis applicable to both de jure and de facto combatants by incorporating aspects of both Article 4(A)(1) and Article 4(A)(2) of GC III.80 The aspects to be considered regarding the de jure incorporation of PMSCs are the same as under Article 4(A)(1) of GC III.81 By contrast, one author seems to argue that Article 43 of AP I, unlike Article 4(A)(2) of GC III, allows for the de facto incorporation of individual PMSC personnel into the armed forces of States.82 An example would be interpreters, technicians or other individuals who are hired for a specific technical or expert function.83 Cameron and Chetail, however, argue that this is ultimately a question of national law regarding the enlistment of personnel.84 Article 43 of AP I further requires States to notify the other parties about the incorporation of paramilitaries and law enforcement agencies into its armed forces. There is a debate among scholars on whether this represents a constitutive requirement for combatant status.85 To sum up, there will be only very rare occasions where the personnel of PMSCs would be de jure or de facto combatants. Due to the combatant-civilian dichotomy of the law of IACs, all PMSC personnel who are not combatants must be qualified as civilians.86 Consequently, they do not enjoy POW status upon capture, and they do not enjoy combatant’s privilege. In exchange, they enjoy protection from attack, unless and for such time that they participate in hostilities.87 The exception to this, at least with regard to the POW status, are those civilians accompanying the armed forces and members of crews. According to Article 4(A)(4) of GC III, ‘civilian members of military aircraft crews, war correspondents, supply contractors, members of labor units or of services responsible for the welfare of the armed forces’ enjoy POW status, provided that ‘they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with

78 See Cameron and Chetail 2013, p 393, n. 26 for a list of authors who either think it is possible or not. 79 Cameron and Chetail 2013, p 407. 80 Ibid., p 408. 81 Ibid. 82 Boldt 2005, pp 514–515. 83 Cameron and Chetail 2013, p 409. 84 Ibid. 85 Ibid., p 410. 86 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the protection of victims of international armed conflicts, opened for signature 8 June 1977, 1125 UNTS 3, entered into force 7 December 1978 (AP I), Article 50; and Seiberth 2014, p 109. 87 Cameron and Chetail 2013, p 103.

3 Beyond Banning Mercenaries: The Use of Private Military …

63

an identity card’.88 It is entirely possible that, in certain cases, providers of private military and security support services would fall under this provision, as the category of ‘supply contractors’ is specifically mentioned in Article 4(A)(4) of GC III.89 In addition, Article 4(A)(5) of GC III states that members of crews of merchant marines and civil aircrafts will also enjoy POW status. This provision could, for example, be applicable to private contractors who, by air or water, transport supplies to the troops.90 In both cases, as civilians, they do not have the right to participate in hostilities and, arguably, they lose their status as POWs if they do so.91

3.3.1.3

PMSC Personnel and the Applicable Law in Non-international Armed Conflicts

In 2017, the majority of armed conflicts (38 out of 55) were NIACs.92 In contrast to the law of IACs, there is no combatant status in NIACs.93 However, there is some discussion as to whether or not government forces still enjoy combatant’s privilege in a NIAC.94 Some argue that this is the case, while others suggest that this is purely a question of national law.95 Ultimately, the question is not of much practical relevance for the armed forces of a State because it is unlikely that a government would prosecute their own forces for fighting on its behalf in a NIAC.96 Doswald-Beck further points out that there are reasonable grounds for the theory that members of armed groups in NIACs are valid targets, regardless of their individual function and their actions in a particular moment.97 She warns, however, that such an approach could lead to targeted killings and inaccurate assessments about the membership of the group, ultimately undermining the protection of civilians.98 According to the International Committee of the Red Cross’ (ICRC) Interpretive Guidance on the Notion of Direct Participation in Hostilities (2009)

88

According to Pictet, carrying an identity card is not a constitutive requirement for POW status, but acts as a safeguard for the civilian carrying it. See Pictet 1960, p 64. 89 For example, according to instructions of the US DoD, civilian personnel supporting the armed forces may be identified as ‘persons accompanying the armed forces’. Debarre 2016, p 443. 90 Arguably, this would not be the case for the transport of ammunition to the front line, as this action would constitute direct participation in hostilities. Melzer 2009, p 56. 91 Cameron and Chetail 2013, p 81. See also ICRC 2005. 92 Bellal 2018, p 17. 93 Doswald-Beck 2007, p 126. 94 Renz 2017, p 311. 95 Ibid., with further references. 96 Ibid., p 313. 97 Doswald-Beck 2007, pp 129–130; Seiberth 2014, p 112. See also Chap. 12 by Diab in the present volume. 98 Doswald-Beck 2007, pp 130–131. But see Renz 2017, pp 317–319.

64

M. Gasser and M. Malzacher

(Interpretive Guidance), ‘in non-international armed conflict, organized armed groups constitute the armed forces of a non-State party to the conflict and consist only of individuals whose continuous function it is to take a direct part in hostilities’.99 The notion of ‘continuous combat function’ refers to individuals whose tasks involve the preparation, execution, or command of acts or operations amounting to direct participation in hostilities.100 Members of such organized groups cease to be civilians for as long they have continuous combat function.101

3.3.1.4

Direct Participation in Hostilities

According to Article 51(3) of AP I and Article 13(3) of the 1977 Additional Protocol II to the Geneva Conventions of 1949 (AP II), civilians in IACs and NIACs lose their protection against attacks if and for such time as they take a direct part in hostilities. Although the notion of ‘direct participation in hostilities’ is not defined in treaties or customary international law,102 the ICRC has tried to clarify it in its Interpretive Guidance.103 For an act of a specific person to qualify as direct participation in hostilities, three criteria have to be cumulatively met: (1) threshold of harm, (2) direct causation and (3) belligerent nexus.104 For the threshold of harm to be met, a specific act must either be likely to adversely affect the military operations or capacity of a party to the armed conflict, or inflict death, injury or destruction on protected objects or persons.105 This, therefore, does not require the materialization of harm but the objective likelihood that the act will cause such harm. It further includes both offensive and defensive acts.106 As its wording indicates,107 direct participation in hostilities also requires ‘a direct causal link between a specific act and the harm that is likely to result either from that act or from a coordinated military operation of which that act is an integral part’.108 While there is no internationally accepted standard for causation, some authors argue that the relevant act must constitute a conditio sine qua non with regard to the anticipated harm.109 The Interpretative Guidance, however, states that

99

Melzer 2009, p 36. Ibid., p 34. 101 For a detailed analysis of ‘combatant’ status in NIACs, see Cameron and Chetail 2013, pp 412–418. 102 Sassòli 2013, p 119. 103 Melzer 2009, pp 1–85. 104 Ibid., p 46. 105 Ibid., p 47. 106 Sossai 2009, p 12. 107 Renz 2017, p 315. 108 Melzer 2009, p 51. 109 Sossai 2009, p 11, with further references. 100

3 Beyond Banning Mercenaries: The Use of Private Military …

65

it is ‘neither necessary nor sufficient that an act be indispensable to the causation of harm’,110 thus implying that it is enough if an act merely contributes to the anticipated harm. Geographic proximity can be evidence of directness but it is not required.111 Finally, the criterion of belligerent nexus requires that an act be designed to support one party to an armed conflict while working to the detriment of another.112 The requirement of a specific design does not, however, imply a subjective intent; rather it is an objective criterion relating to the purpose of the act.113 According to the Interpretative Guidance, individual self-defense and the defense of others against violence prohibited under IHL, such as looting, rape and murder, lack a belligerent nexus.114

3.3.1.5

Applying the Notion of Direct Participation in Hostilities to the Different Types of Services Offered by PMSCs

In light of the aforementioned typology of services offered by PMSCs, the notion of direct participation in hostilities is, prima facie, most pertinent to private military services. Participation in combat operations will, by definition, fulfill all three criteria, thus resulting in direct participation in hostilities. In cyberspace, experts agree that, in principle, the criteria for direct participation in hostilities remain the same.115 For example, a cyber-operation that disrupts the enemy’s command and control center would fulfill all three criteria of the Interpretative Guidance.116 Furthermore, the active defense by private actors of military cyber assets against a belligerent computer network attacks may also constitute direct participation in hostilities, as IHL makes no distinction between defensive and offensive acts.117 Private military support services, on the other hand, include logistical services such as transport, the storing of goods, securing supplies, and the maintenance and enhancement of equipment. In most cases, these services, even when provided in the theater of military operations, will fail the criteria of direct causation.118 For example the transportation of food or non-military supplies would not amount to direct participation in hostilities.119 Regarding the transport of ammunition, however, the Interpretative Guidance differentiates between the driver transporting the

110 111 112 113 114 115 116 117 118 119

Melzer 2009, p 54. Ibid., p 55. Ibid., p 58. Ibid., p 59. Ibid., p 61. Schmitt 2017, p 429. Ibid., p 430. Woltag 2014, p 246. Debarre 2016, pp 457–459. Ibid., p 458.

66

M. Gasser and M. Malzacher

ammunition to a storehouse on the one hand and the delivery of ammunition to an active firing position on the other. While the former does not cause the subsequent harm directly, the latter has to be considered as an integral part of combat operations.120 With respect to the maintenance of military equipment, Schmitt argues that maintenance carried out remotely from the battlefield and maintenance on equipment carried out as a matter of routine, even if done near the frontline, does not impact on the conduct of operations.121 While the first assertion seems correct, this chapter argues that maintenance near the battlefield, whether it is a routine service or in order to fix a specific problem, may have a direct impact on the operations of the armed forces, if the equipment needs to be maintained because of its direct use in combat operations.122 Debarre points out that whether maintenance of equipment constitutes direct participation may also depend on the type of equipment used. In her opinion, the maintenance of a combat drone may cause the required threshold of harm and fulfil the belligerent nexus requirement, while ‘regular weapons or vehicles’ would not fulfil the requirement of a causal link. Although this chapter agrees with the positon that the type of equipment could be relevant for this assessment, it is argued that that the same reasoning could not only be applied to combat drones but to all weapon systems. This assessment is particularly important for industrial companies that are providing these kinds of services without being aware of the possible consequences for their personnel. With regard to intelligence, Schmitt argues that only tactical intelligence activities should be considered as direct participation in hostilities due to their impact on the conduct of hostilities, while strategic intelligence would not be sufficiently related to this.123 In cyberspace, experts agree that the gathering of information on enemy operations by cyber means on behalf of the armed forces of a State amount to direct participation in hostilities.124 Private military consulting services, as opposed to security consulting services, include military advice and training specifically aimed at improving the capabilities of the military. Even though it is clear that these services have a strategic importance, they usually have no immediate impact on military operations.125 Yet, if PMSC personnel were providing tactical advice with regard to specific operations, there would be indeed a direct link to the intended harm.126 The same logic applies to companies that provide training in cyber ranges – as long as no specific combat scenarios are being trained, they usually would not constitute a direct causal link to the intended harm.

120 121 122 123 124 125 126

Melzer 2009, p 56. Schmitt 2005, p 544. Debarre 2016, p 459. Schmitt 2005, p 543. See Schmitt 2017, p 430; and Woltag 2014, p 246. Boldt 2005, p 521. Schmitt 2005, p 543.

3 Beyond Banning Mercenaries: The Use of Private Military …

67

As described above, private security services include services such as guarding and protecting persons and/or objects. Generally, the provision of these services by private entities or security forces does not amount to direct participation in hostilities, even if it takes place in a theater of military operations. However, this assessment becomes more complex if the object of the assignment is a military objective.127 Relevant here is again the fact that IHL makes no distinction between offensive and defensive operations. Accordingly, defending military objectives from an enemy attack amounts to direct participation in hostilities.128 In contrast, defending such objects from any person engaged in criminal activity does not amount to direct participation in hostilities. In addition, PMSC personnel, as civilians, retain their right to defend themselves, as long as it is necessary and proportionate.129

3.4

Approaches to Regulation

It is clear from the assessment in the previous section that whilst the existing rules of IHL concerning PMSCs may serve as a starting point, clearer rules are needed to regulate the conduct of the various incarnations of modern PMSCs.

3.4.1

The Legally Binding Approach: The UN Draft Convention

Part of the mandate of the Working Group on the use of mercenaries130 is oriented towards the improvement of regulation, control and monitoring of PMSCs by States.131 In this respect, a legally binding instrument has been considered the best way to define State obligations as regards to the necessary framework for PMSCs. Therefore, the Working Group on the use of mercenaries proposed the Draft Convention to the UN Human Rights Council in July 2010,132 which would be the first international treaty specifically addressing PMSCs. The Draft Convention is not limited to armed conflicts. It provides a definition of PMSCs, describes functions that cannot be outsourced to PMSCs, establishes that State parties have to develop national legislation to regulate PMSCs and outlines the necessary features thereof, elucidates States’ responsibility to impose criminal, civil and/or administrative 127 128 129 130 131 132

Ibid., p 538. Sossai 2009, p 12. Schmitt 2005, pp 538–539. UN Commission on Human Rights 2005. Entenza 2016, p 211. UN Human Rights Council 2010.

68

M. Gasser and M. Malzacher

sanctions on offenders and to provide remedies to victims. It also stipulates the establishment of an international committee on the regulation, oversight and monitoring of PMSCs.133 However, the Draft Convention was never adopted. Instead, in October 2010 the UN Human Rights Council decided to establish the Open-Ended Intergovernmental Working Group to consider the possibility of elaborating an international framework on the regulation, monitoring and oversight of the activities of PMSCs (Working Group on PMSCs).134 The sessions steered by the Working Group on PMSCs between 2010 and 2016 have yielded few tangible results, and have not yet led to an agreement. Still, the situation seems to have evolved during its sixth session held in Geneva on 22–24 May 2017, where it recommended that the UN Human Rights Council considers the establishment of a new intergovernmental Working Group for a period of three years to start preparing the content of an international regulatory framework.135 However, the nature of the framework remains disputed as some States support a legally binding agreement whereas others favor a non-binding document. Nonetheless, States have agreed to move forward with the process in a constructive way. The focus is set on the protection of human rights as well as on accountability for their violation and abuse as a consequence of the activities of PMSCs.136 One notable and encouraging addition to the process is the reference and acknowledgement, in the conclusions and recommendations of the Working Group on PMSCs, of soft law initiatives such as the Montreux Document (2008) and the International Code of Conduct Association (ICoCA).137 Although the Working Group on PMSCs has not convened any meetings in the meantime, one can hope for more exchange and coherence between the various initiatives in the future.

3.4.2

The Soft Law Approach

In parallel to the intergovernmental process, various soft law initiatives have been developed over the course of the last ten years. The following section considers two of these in some detail. First, it examines the Montreux Document (2008), which aims to remind States of their international obligations in terms of regulating PMSCs. Second, this section briefly addresses the other initiative launched by Switzerland: the ICoC.

133 134 135 136 137

Ibid. Cameron and Chetail 2013, p 572. UN General Assembly 2017, p 9. Ibid. Ibid.

3 Beyond Banning Mercenaries: The Use of Private Military …

3.4.2.1

69

The Intergovernmental Approach: The Montreux Document (2008)

In 2006, Switzerland and the ICRC launched an initiative to promote the respect for IHL and international human rights law (IHRL) by PMSCs operating in situations of armed conflict. This eventually resulted in the Montreux Document (2008) which compiles existing binding rules applicable to States in which PMSCs are based (home States), States that engage PMSCs (contracting States) and States where PMSCs carry out their activities (territorial States). In 2008, after almost three years of intergovernmental meetings led by Switzerland and the ICRC, the Document was endorsed by 17 States – a number that has grown over the years.138 Pursuant to the traditional international law approach, the primary subjects of the Montreux Document (2008) are States, as it is their responsibility to respect, and to ensure respect for, international law. Thus, the Montreux Document (2008) does not aim to regulate PMSCs directly as such, but does so indirectly through States.139 Nonetheless, other actors, such as non-governmental organizations, international organizations, PMSCs and other concerned stakeholders are invited to adopt its good practices as guidelines in the field. It further aims to assist States in the process of adopting national measures so that they comply with their obligations under international law.140 As suggested by its full title, the scope of the Montreux Document (2008) is directed in particular to situations of armed conflict, and has therefore a strong focus on IHL.141 According to paras 5, 6 and 8, States have the duty to investigate and prosecute international crimes as well as the obligation to make remedies available if violations can be attributed to them. The obligation of PMSCs and their personnel to respect international law as well as national law is stated in paras 22–26 of the Document. Alongside the reaffirmation of IHL and IHRL obligations, the Montreux Document (2008) also proposes 73 good practices related to the regulation of PMSCs by States under national law. These serve as a practical guidance tool for States to integrate the legal obligations compiled in the Montreux Document (2008) into their national law in order to regulate the activities of PMSCs and to create effective control and accountability mechanisms, whatever the political context may be. Indeed, the application of the good practices is not limited to armed conflict situations. States may select which good practice applies best to their particular circumstances.142 138 This included Afghanistan, Angola, Australia, Austria, Canada, China, France, Germany, Iraq, Poland, Sierra Leone, South Africa, Sweden, Switzerland, United Kingdom, Ukraine, United States of America. At the time of writing, the Montreux Document (2008) is supported by 55 States and 3 international organizations. 139 White 2012, p 13. 140 Entenza 2016, p 237. 141 Some authors, such as White, argue that PMSCs are actually more likely to violate IHRL rather than IHL since they are often active in post-conflict situations. See White 2012, p 13. 142 van Amstel and Rodenhäuser 2016, p 6.

70

M. Gasser and M. Malzacher

In December 2014, participants to the Montreux Document (2008) created the Montreux Document Forum (MDF). The MDF provides ‘a venue for informal consultation among Montreux Document participants … [and] further aims to strengthen dialogue on lessons learned, good practices, and challenges related to the regulation of PMSCs’.143 While the Montreux Document (2008) and the MDF have provided for an excellent basis and platform to discuss the regulation of PMSCs among States, the authors of this chapter are concerned that a narrow focus on situations of armed conflict might eventually become a limiting factor for its implementation. The authors of this chapter therefore advocate for a broad interpretation of the scope of application of the Montreux Document (2008), to make sure that the MDF continues to provide a platform to address all concerns associated with the use of PMSCs.

3.4.2.2

The Multi-stakeholder Approach: The International Code of Conduct

Faced with the lack of an international binding consensus on how to regulate PMSCs, the industry itself began a self-regulatory process just after the Montreux Document (2008) was finalized.144 The ICoC, signed in November 2010, was the result of a multi-stakeholder initiative by representatives of governments, of the PMSC industry and of civil society (the so-called three ‘pillars’). Its originality lies in the fact that it brought all stakeholders to the negotiating table in order to discuss and define minimum standards applicable to private security providers in complex environments. The objective of the ICoC was ‘to set principles and standards firmly based on international human rights and humanitarian law principles for the private security industry … as well as to improve oversight and accountability of these companies’.145 In other words, it translated existing obligations into principles to be applied by companies in their operations.146 Companies assert their responsibility to respect human rights when providing security services in regions where the rule of law has been undermined and commit themselves to comply with international law as well as with any applicable national law. Moreover, companies agree to take all necessary measures to prevent any IHL or IHRL violations by their agents or through the provision of their services.147 Multi-stakeholder negotiations led in 2013 to the establishment of an independent governance and oversight mechanism: the abovementioned International Code 143

The Federal Council (2014) Private military and security companies: Montreux Document participants Forum to continue working on implementation, 16 December 2014. https://www. admin.ch/gov/en/start/dokumentation/medienmitteilungen.msg-id-55689.html. Accessed 6 February 2019. 144 Percy 2012, p 954. 145 International Code of Conduct Association n.d. Frequently Asked Questions. 146 van Amstel and Rodenhäuser 2016, p 7. 147 ICoC, paras 6, 21 and 24.

3 Beyond Banning Mercenaries: The Use of Private Military …

71

of Conduct Association. Its main functions are to certify member companies and to exercise oversight of their activities through reporting, monitoring and performance assessment procedures.148 The ICoCA is composed of a General Assembly, a Secretariat and a Board of Directors constituted by four members of each of the three pillars. At the time of writing, the ICoCA consists of seven Member States,149 94 PMSCs, and 29 NGOs. The ICoCA became fully operational after its 2016 Annual General Assembly (AGA) adopted procedures regarding its core functions: monitoring, complaints and certification.150 With regard to the latter, member companies have to attain a third-party certification issued by an independent accredited Certification Body. So far, three third-party certification standards have been accepted by the ICoCA.151 Due to concerns regarding the accessibility of the current membership process, the 2017 AGA adopted a new Transitional Membership Process.152 However, serious reservations remain as to whether or not the costly third-party certification will deter smaller companies or companies operating in remote areas from becoming members of the ICoCA. Ultimately, the success of this initiative hinges on the question of whether the demand by companies and States for the services provided by ICoCA-certified PMSCs is high enough to justify the necessary investments by PMSCs.

3.4.3

National Approaches

International initiatives and approaches to regulation are indispensable for setting clear and universally applicable guidelines and best practices for PMSCs. Nevertheless, they alone are not sufficient to tackle the challenges and problems associated with regulating PMSCs. It is thus important that States incorporate these best practices into national law and that the different layers of control and regulation complement each other.153 The Geneva Centre for the Democratic Control of Armed Forces’ ‘Mapping study on Outreach and Implementation’ has shown that since the year 2000, 60% of the Montreux Document (2008) participating States have passed domestic laws to regulate PMSCs.154 This increase in regulation shows 148

ICoC, paras 11, 12 and 13. These are the following: Australia, Canada, Norway, Sweden, Switzerland, United Kingdom, and the United States of America. 150 International Code of Conduct Association 2016. 151 Namely ISO 18788, ISO 28007, PSC.1. International Code of Conduct Association n.d. Certification. 152 International Code of Conduct Association 2017. 153 Montreux +5 Conference (2013), Chairs’ Conclusions. http://www.mdforum.ch/pdf/2013-1213-Montreux-5-Conference-Chairs-Conclusions_en.pdf. Accessed 23 April 2018; Cottier 2006, p 638. 154 DCAF 2017b, p 19. 149

72

M. Gasser and M. Malzacher

that with the growing importance of PMSCs, States have at least tried to keep up with the developments in the private sector. It also implies that they are increasingly aware of their responsibility for the acts committed by companies within their jurisdiction.155 The different approaches to national regulation can, in accordance with the structure of the Montreux Document (2008), be divided into three groups: the territorial State approach, the contracting State approach and the home State approach. In many instances, the particular domestic approaches were chosen to address a specific problem and often States have chosen more than one to tackle different legislative needs. The territorial State approach seeks that States regulate the operations of those PMSCs that are active on their territory. Here, many States have introduced regulation of some sort in order to govern PMSCs operating on their territory, albeit the approaches vary significantly in their design.156 Regulatory elements imposed on PMSCs under this approach include different forms of licensing or monitoring systems, bans on certain activities, or a mix thereof.157 In the case of licensing and monitoring, States usually put in place certain requirements regarding training, selection and vetting of personnel, identification, reporting, subcontracting and so on.158 Using the contracting State approach, States exert their influence over PMSCs through their market power.159 State contracts are often very lucrative and an important source of income for PMSCs,160 which makes contract provisions a relatively simple tool for regulation. For instance, States can include conditions such as due diligence, training of employees, reporting requirements and membership in organizations such as the ICoCA as part of the contract bidding process and/or in the final contracts with PMSCs.161 The US Department of State, for example, announced in 2013 its intention to include an ICoCA membership requirement into its procurement procedures.162

155

Ibid. Ibid., p 48; Cottier 2006, p 646. 157 Cottier 2006, p 647. 158 For a detailed list of best practices, see DCAF 2016. 159 Cottier 2006, p 640. 160 DCAF 2017a. 161 For example, Section 7 (Articles 30–36) of the Swiss PSSA 2015, above n. 9, forms a statutory basis for the contracting of security companies by the Swiss Federal authorities in complex environments and defines the minimal requirements with respect to the companies concerned. In particular, the provisions determine the requirements of the contracted PMSCs with regard to training, equipment and internal control mechanisms. In addition, the Swiss PSSA (2015) requires the contracted company to become a signatory of the Code of Conduct. 162 US Department of State (2013) State Department to Incorporate International Code of Conduct into Worldwide Protective Services Contracts, 16 August 2013. https://2009-2017.state. gov/r/pa/prs/ps/2013/08/213212.htm. Accessed 20 April 2019. 156

3 Beyond Banning Mercenaries: The Use of Private Military …

73

Contrary to the other types of national regulation, the home State approach has, to date, only been adopted by a few countries.163 One notable example is the Swiss Federal Act on Private Security Services Abroad, which came into force in 2015. The Act applies to natural and legal persons that provide private security services abroad or services in connection with private security services also provided abroad. Further, it applies extraterritorially to those who exercise control from Switzerland over such a company.164 It implements a system of control whereby companies have to declare individual activities to the responsible authority, which then reviews the information provided.165 Apart from protecting Switzerland’s own national interest, the Act has a clear focus on the respect for IHL and IHRL.166 Article 8 of the Act prohibits all companies within its scope of application from providing any services carried out for the purpose of direct participation in hostilities abroad.167 In addition, Article 9 prohibits the provision of services which may be utilized by the recipient in the context of the commission of serious human rights violations. Ultimately, whatever approach (or mix of approaches) a State chooses, it is important to first carefully analyze the market and clearly identify the types of PMSC services that are offered and, of these, which need to be regulated. These services, of course, can vary wildly from State to State, depending on local conditions.

3.5

Conclusion

The analysis of the different types of PMSCs and the law applicable upon them in the first section of this chapter has shown that, while it is not correct to say that PMSCs operate in a ‘legal black hole’, it is certainly true that PMSCs operate, as Sassòli notes, ‘in a very chaotic legal environment, made up of very diverse rules, 163

One example is South Africa, which regulated certain activities of South African PMSCs operating abroad through the ‘Regulation of Foreign Military Assistance Bill’ of 1997. For a detailed account of the South African regulatory framework, see Bosch et al. 2016, p 50. The US, on the other hand, regulates certain activities of US-based PMSCs via their export control regime, namely, the International Traffic in Arms Regulations. For a detailed examination of this approach, see Caparini 2007. 164 Swiss PSSA 2015, above n. 9, Article 2. 165 For an outline of the specific procedures, see Swiss PSSA 2015, above n. 9, Articles 10–14. 166 Swiss PSSA 2015, above n. 9, Article 1 lays out the goals of the act, namely, to contribute to safeguarding the internal and external security of Switzerland, the realisation of Switzerland’s foreign policy objectives, the preservation of Swiss neutrality and the respect for international law, in particular, human rights and IHL. 167 See Swiss PSSA 2015, above n. 9, Articles 8 and 4. With regard to the notion of direct participation in hostilities, the accompanying message makes clear that the ICRC’s Interpretative Guidance is the point of reference for the interpretation of Swiss PSSA 2015, Article 8. See The Swiss Federal Council 2013.

74

M. Gasser and M. Malzacher

addressed to various actors, which have not been made for PMSCs (but nevertheless cover them)’.168 It is thus important to work towards a better legal environment to regulate the conduct of PMSCs in a more clear and transparent fashion. The last few years have seen a lot of progress in this regard: The UN Draft Convention process has been revitalized in its last session; the Montreux Document (2008) has been established with the MDF serving as a platform for dialogue among States; and the ICoCA has been fully operationalized. In addition, many States have recognized the importance of the issue and have enacted legislation aimed at regulating PMSCs. However, for soft-law initiatives to take full effect, it is indispensable that States remain committed to international dialogue on the matter and do their utmost to implement the standards set by these initiatives. Ideally, an overlap between State regulation and self-regulation should exist. For instance, it would be helpful if more States would make membership in ICoCA a requirement in their procurement procedures in order to combine their market power. This, in turn, would create an incentive for PMSCs to join the ICoCA, thus raising the industry standards across the board. In addition, individual States should make sure that they efficiently regulate all types of PMSCs at a national level and improve the exchange of information on transnationally operating PMSCs, for example, through administrative and legal cooperation with other States. The world is currently experiencing a shift in power and there are no signs of improvement for the international security situation on the horizon. States face various security challenges, such as terrorism, cyber-attacks and the advancement of technology in general, to name only a few. Due to the complexity of these challenges, in the future many States will continue to rely on private companies for expertise and support. PMSCs, in all their incarnations, are here to stay and they will continue to expand and adapt their services to meet the demands of States and private actors alike. It is the responsibility of individual States and the international community as a whole to make sure that these services are appropriately regulated, in order to ensure that collective security is not achieved at the expense of violating the rights of the civilian population in war zones and beyond.

References Bellal A (2018) The War Report. The Geneva Academy of International Humanitarian Law and Human Rights, Geneva. Boldt N (2005) Outsourcing War: Private Military Companies and International Humanitarian Law. German Yearbook of International Law 47:502–544. Booz Allen Hamilton (n.d.) Cybersecurity. https://www.boozallen.com/expertise/cyber.html. Accessed 2 February 2019. Bosch S et al. (2016) Mercenaries or legitimate actors? South African regulation of PMSCs. In: Schaub G Jr, Kelty R (eds) Private Military and Security Contractors. Controlling the Corporate Warrior. Rowman & Littlefield, Lanham. 168

Sassòli 2013, p 117.

3 Beyond Banning Mercenaries: The Use of Private Military …

75

Cameron L, Chetail V (2013) Private Military and Security Companies under Public International Law. Cambridge University Press, Cambridge. Caparini M (2007) Domestic regulation. In: Chesterman S, Lehnardt C (eds) From Mercenaries to Market. The Rise and Regulation of Private Military Companies. Oxford Scholarship, Oxford, pp 158–178. Carmola K (2010) Private Security Contractors and New Wars: Risk, law, and ethics. Routledge, London/New York. Clapham A (2006) Human Rights Obligations of Non-State Actors. Oxford University Press, Oxford. Constellis (2017) Code of Business Ethics & Conduct. http://docs.constellisgroup.com/Group_ Code_of_Conduct.pdf. Accessed 23 April 2018. Control Risk (n.d.) Cyber Security. https://www.controlrisks.com/our-services/creating-a-secureorganisation/cyber-security. Accessed 3 December 2018. Cottier M (2006) Elements for contracting and regulating private security and military companies. International Review of the Red Cross 88(863):637–663. DCAF (2016) Legislative Guidance Tool for States to Regulate Private Military and Security Companies. https://www.dcaf.ch/sites/default/files/publications/documents/LegislativeGuidance-Tool-EN_1.pdf. Accessed 6 February 2019. DCAF (2017a) Guidance Tool for Contracting Private Military and Security Services (PMSCs), p 13. http://www.mdforum.ch/pdf/contract-guidance-tool.pdf. Accessed 7 February 2019. DCAF (2017b) The Montreux Document: A Mapping study on Outreach and Implementation, Burdzy AM (ed) www.mdforum.ch/pdf/mapping-study.pdf. Accessed 7 February 2019. Debarre A S (2016) U.S.-Hired Private Military and Security Companies in Armed Conflict: Indirect Participation and its Consequences. Harvard National Security Journal 7:437–468. Doswald-Beck L (2007) Private military and security companies under international humanitarian law. In: Chesterman S, Lehnardt C (eds) From Mercenaries to Market. The Rise and Regulation of Private Military Companies. Oxford Scholarship, Oxford, pp 115–138. Dunigan M (2016) The Consequences of Outsourcing Military Support Functions. In: Berndtsson J, Kinsey C (eds) Routledge Research Companion to Security Outsourcing. Routledge, London/New York, pp 241–256. Dunn-Cavelty M (2016) Cyber-Security and Private Actors. In: Abrahamsen R, Leander A (eds) Routledge Handbook of Private Security Services. Routledge, London/New York, pp 89– 99. DynCorp International (n.d.) What We Do. Training. http://www.dyn-intl.com/what-we-do/ training/. Accessed 3 February 2019. Entenza H (2016) Les obligations et la responsabilité de l’Etat face aux activités des entreprises militaires et de sécurité privées. Helbing Lichtenhahn, Basel. Erbel M, Kinsey C (2016) Privatizing Military Logistics. In: Abrahamsen R, Leander A (eds) Routledge Handbook of Private Security Services. Routledge, London/New York, pp 70– 78. Federal Department of Foreign Affairs (2016) Guidelines to the Federal Act on Private Security Services provided Abroad (PSSA). https://www.eda.admin.ch/dam/eda/en/documents/ aussenpolitik/sicherheitspolitik/wegleitung-BPS-ausland_EN.pdf. Accessed 7 June 2019. General Dynamics’ European Land Systems (GDELS) (n.d.) Integrated Logistic Support. https:// www.gdels.com/ils.php. Accessed 3 December 2018. Hoffman W, Levite A (2017) Private Sector Cyber Defense. Can Active Measures Help Stabilize Cyberspace? http://carnegieendowment.org/2017/06/14/private-sector-cyber-defense-canactive-measures-help-stabilize-cyberspace-pub-71236. Accessed 3 December 2018. International Code of Conduct Association (n.d.) Frequently Asked Questions. https://www.icoca. ch/en/frequently-asked-questions. Accessed 3 December 2018. International Code of Conduct Association (n.d.) Certification. Certification. https://www.icoca.ch/ en/certification. Accessed 6 February 2019.

76

M. Gasser and M. Malzacher

International Code of Conduct Association (2016) Minutes of the 2016 ICoCA Annual General Assembly. https://www.icoca.ch/sites/default/files/resources/Annual%20General%20 Assembly%20Minutes.zip. Accessed 6 February 2019. International Code of Conduct Association (2017) Transitional Membership Process. https://icoca. ch/sites/default/files/uploads/Amendment%20to%20AoA%20-%20Transitional% 20Membership_Explanatory%20note%20for%20website%20PDF.pdf. Accessed 6 February 2019. International Committee of the Red Cross (2005) Third Expert Meeting on the Notion of Direct Participation in Hostilities: Summary Report. https://www.icrc.org/en/doc/assets/files/other/ 2005-09-report-dph-2005-icrc.pdf. Accessed 6 February 2019. Liu H-Y (2015) Cybersecurity and Cyberwarfare as Emerging Gaps in Private Military and Security Company Regulation: Thoughts for the UN Working Group on the Use of Mercenaries.http://www.ohchr.org/Documents/Issues/Mercenaries/WG/Event2015/ HinYanLiu.pdf. Accessed 7 June 2018. Lockheed Martin (n.d.) Special Operations Forces Global Logistics Support Services. https:// www.lockheedmartin.com/us/products/soflogistics.html. Accessed 3 December 2018. Lockheed Martin (2017) Logistics and Sustainment. https://web.archive.org/web/20171011025120. http://www.lockheedmartin.com/us/what-we-do/aerospace-defense/logistics-sustainment.html. Accessed 6 February 2019. Maurer T (2018) Cyber Mercenaries. The State, Hackers, and Power. Cambridge University Press, Cambridge. Melzer N (2009) Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law. ICRC, Geneva. Melzer N (2013) Status of Private Military Security Companies under International Humanitarian Law. In: D’Aboville B (ed) Private Military and Security Companies. 35th Round Table on Current Issues of International Law. Franco Angeli, Milan, pp 99–107. Percy S (2012) Regulating the private security industry: a story of regulating the last war. International Review of the Red Cross 94(997):941–960. Pictet JS (1960) Commentary to the III Geneva Convention relative to the treatment of prisoners of war. International Committee of the Red Cross, Geneva. Raytheon (n.d.) Mission Support. https://www.raytheon.com/capabilities/missionsupport. Accessed 3 December 2018. Renz F (2017) The Role of Private Military and Security Companies: Corporate Dogs of War or Civilians Operating in Hostile Environments? Swiss Review of International and European Law 3:305–332. Rona G (2017) When is a Mercenary (Not) a Mercenary? The Case of Foreign Fighters in the UAE’s Military. https://www.justsecurity.org/41055/mercenary-not-mercenary-case-foreignfighters-uaes-military/. Accessed 23 April 2018. RUAG Group (n.d.) RUAG Cyber Security. https://www.ruag.com/en/products-services/land/ cyber-security. Accessed 23 April 2018. Sandline (n.d.). http://www.sandline.com/. Accessed 23 April 2018. Sassòli M (2013) International Law and the Use and Conduct of Private Military and Security Companies in Armed Conflict. ICIP Research 01:109–126. Schmitt M (2005) Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees. Chicago Journal of International Law 5(2):511–546. Schmitt M (ed) (2017) Tallinn Manual 2.0 on the international law applicable to cyber operations, prepared by the International Groups of experts at the Invitation of the NATO Cooperative Cyber Defence Center of Excellence. Cambridge University Press, Cambridge. Seiberth C (2014) Private Military and Security Companies in International Law. Intersentia, Cambridge/Antwerp/Portland. Sheehy B, Maogoto J, Newell V (2008) Legal Control of the Private Military Corporation. Palgrave Macmillan, New York. Singer P (2003) Corporate Warriors. The Rise of the Privatized Military Industry. Cornell University Press, Ithaca and London.

3 Beyond Banning Mercenaries: The Use of Private Military …

77

Singer P (2004) War, Profits, and the Vacuum of Law. Privatized Military Firms and International Law. Columbia Journal of Transnational Law 42(2):521–549. Sossai M (2009) Status of PMSC Personnel in the Laws of War. The Question of Direct Participation in Hostilities. EUI Working Paper AEL 2009(6):1–25. The Swiss Federal Council (2013) Message concernant la loi fédérale sur les prestations de sécurité privées fournies à l’étranger. https://www.admin.ch/opc/fr/federal-gazette/2013/1573. pdf. Accessed 6 February 2019. Tonkin H (2011) State Control over Private Military and Security Companies in Armed Conflict. Cambridge University Press, Cambridge. UN Commission on Human Rights (2005) The Use of Mercenaries As a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-determination. UN Doc. E/CN.4/RES/2005/2. UN General Assembly (1989) Report of the Ad Hoc Committee on the Drafting of an International Convention against the Recruitment, Use, Financing and Training of Mercenaries. UN Doc. A/ 44/43, Supplement No. 43. UN General Assembly (2017) Report of the open-ended intergovernmental working group to consider the possibility of elaborating an international regulatory framework on the regulation, monitoring and oversight of the activities of private military and security companies on its sixth session. UN Doc. A/HRC/36/36. UN Human Rights Council (2010) Report of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination. UN Doc. A/HRC/15/25 Annex (Draft Convention). van Amstel N, Rodenhäuser T (2016) The Montreux Document and the International Code of Conduct: Understanding the relationship between international initiatives to regulate the global private security industry. DCAF, Geneva. White N (2012) Regulatory Initiatives at the International Level. In: Bakker C, Sossai M (eds) Multilevel Regulation of Military and Security Contractors. The Interplay between International, European and Domestic Norms. Hart Publishing, Oxford/Portland. Woltag J-C (2014) Cyber Warfare: Military Cross-Border Computer Network Operations under International Law. Intersentia, Cambridge.

Martina Gasser holds a Master of Law from the University of Berne and an LL.M. from the Geneva Academy of International Humanitarian Law and Human Rights. She is currently the Deputy-Head of the Private Security Service Section of the Swiss Federal Department of Foreign Affairs (FDFA), Bern, Switzerland. Mareva Malzacher holds a Master of Law from the University of Geneva and was admitted to the Geneva Bar in 2012. She is currently a legal adviser at the Swiss Federal Department of Foreign Affairs (FDFA), Bern, Switzerland.

Chapter 4

The Legal Protection of Personnel of United Nations Peacekeeping Operations in Times of NIAC Keiichiro Okimoto

Contents 4.1 Introduction........................................................................................................................ 4.2 Relevant Aspects of United Nations Peacekeeping Operations ....................................... 4.3 Protection Under International Humanitarian Law........................................................... 4.3.1 Protection Under the Rules Concerning Humane Treatment ................................ 4.3.2 Protection Under the Rules Concerning the Conduct of Hostilities ..................... 4.3.3 Loss of Protection Given to Civilians Under IHL on an Individual Basis .......... 4.3.4 Collective Loss of Protection Given to Civilians Under IHL............................... 4.3.5 Various Ways in Which the Loss of Protection Could Occur.............................. 4.4 Protection Under the Convention on the Safety of United Nations and Associated Personnel............................................................................................................................ 4.4.1 Protective Scope of the Safety Convention ........................................................... 4.4.2 Drafting History of the Safety Convention and its Optional Protocol ................. 4.4.3 Practice of the ICC................................................................................................. 4.4.4 Practice of the General Assembly and the Security Council ................................ 4.4.5 Potential Issues of the Lack of Clarity with the Protective Scope of the Safety Convention.............................................................................................................. 4.5 Conclusions........................................................................................................................ References ..................................................................................................................................

80 83 85 85 87 89 92 93 96 96 98 101 102 103 104 105

Abstract United Nations peacekeeping operations have increasingly been deployed to situations of armed conflict and have frequently been targeted by parties to the conflict. Against this backdrop, the legal protection for personnel of United Nations peacekeeping operations in times of armed conflict has been developed particularly since the 1990s. International humanitarian law and the 1994 Convention on the Safety of United Nations and Associated Personnel are now the principal sources of legal protection for personnel of United Nations peacekeeping K. Okimoto (&) Office of the Legal Counsel, Office of Legal Affairs, United Nations, New York, USA e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 E. Heffes et al. (eds.), International Humanitarian Law and Non-State Actors, https://doi.org/10.1007/978-94-6265-339-9_4

79

80

K. Okimoto

operations in times of armed conflict. However, they pose difficulties of a different nature in determining when those personnel are protected and when they are not, particularly when such personnel are engaged in hostilities in situations of non-international armed conflict. This chapter explores these issues in detail and concludes that the practice has not sufficiently evolved to resolve them.




Keywords United Nations Peacekeeping Operations Non-international armed conflict Legal Protection International Humanitarian Law Convention on the Safety of United Nations and Associated Personnel Direct Participation in Hostilities Party to a Conflict










4.1







Introduction

This chapter discusses the protection under international law of personnel of United Nations (UN) peacekeeping operations in times of non-international armed conflict (NIAC), and highlights that, while the legal protection for such personnel has significantly developed over the years, the current regime appears to leave uncertainty as to when such personnel are entitled to the protection and when they are not. Until the early 1990s, the legal protection of UN peacekeeping operations in times of armed conflict was rarely discussed. Most of the discussion focussed on whether, in times of armed conflict, international humanitarian law (IHL) was applicable to UN peacekeeping operations and whether they were bound by that law.1 While IHL was rapidly codified after the Second World War, namely in the 1949 Geneva Conventions2 and the two Additional Protocols of 1977,3 the rules

1 American Society of International Law 1952; Bowett 1964; Seyersted 1966; Institute of International Law 1971 and 1975; Sandoz 1978; Schindler 1984. 2 Geneva Convention for the Amelioration of the Wounded and Sick in Armed Forces in the Field of August 12, 1949, opened for signature 12 August 1949, 75 UNTS 31, entered into force 21 October 1950; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949, opened for signature 12 August 1949, 75 UNTS 85, entered into force 21 October 1950; Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, opened for signature 12 August 1949, 75 UNTS 135, entered into force 21 October 1950; Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949, opened for signature 12 August 1949, 75 UNTS 287, entered into force 21 October 1950. 3 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 1978 (Additional Protocol I); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature 12 December 1977, 1125 UNTS 609, entered into force 7 December 1978 (Additional Protocol II).

4 The Legal Protection of Personnel of United Nations …

81

that specifically deal with the protection of UN peacekeeping operations were not included in IHL treaties.4 The issue of the protection of UN peacekeeping operations, particularly the protection of their personnel, gained particular attention since the 1990s in reaction to the sharp rise in the number of peacekeeping operations and the number of casualties suffered by them in the course of their missions.5 In 1993, the General Assembly decided to elaborate an international convention dealing with the safety and security of UN and associated personnel.6 Within exactly one year, the General Assembly adopted the Convention on the Safety of United Nations and Associated Personnel (‘the Safety Convention’).7 Incidentally, on the same day, the General Assembly also decided to launch a process for the establishment of an international criminal court.8 Four years later, in 1998, the Rome Statute of the International Criminal Court (ICC)9 was adopted, which, among other things, specifically criminalized intentional attacks against personnel involved in peacekeeping missions as a war crime. Thus, during the 1990s, significant efforts were made to enhance the protection of UN peacekeeping operations, particularly in situations of armed conflict. However, even while States were negotiating the Safety Convention and the Rome Statute, they were already conscious of the following question: when would such protection cease to apply? This issue drew further attention subsequent to the adoption of those two instruments, in large part due to the increasing involvement of UN peacekeeping operations in hostilities in situations of NIAC. The first UN peacekeeping operation which was established after the adoption of the ICC Statute in 1998 and mandated to ‘take the necessary action’ to carry out its mandate, which normally would include the use of force, was the United Nations Mission in Sierra Leone (UNAMSIL).10 Since then, 13 UN peacekeeping operations have been mandated to take all necessary measures to carry out their

4

ICRC 1999, pp 22 and 23. See e.g., UN Secretary-General 1992, paras 66–68, and UN Secretary-General 1993; UN Security Council 1993. See also Bloom 1995; Bourloyannis-Vrailas 1995a, 2000; Bouvier 1995; Kindred 1995; Kirsch 1995; Arsanjani 1996; Greenwood 1996; Maybee 2002; Engdahl 2005; Fleck 2006; Llewellyn 2006; Sassòli 2008; Doria 2009; Bangura 2010; Gadler 2010; Engdahl 2012; Pacholska 2015. 6 UN General Assembly 1993b. 7 UN General Assembly 1994b; Convention on the Safety of United Nations and Associated Personnel, opened for signature 15 December 1994, 2051 UNTS 363, entered into force 15 January 1999 (Safety Convention). 8 UN General Assembly 1994a. 9 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3, entered into force 1 July 2002 (ICC Statute). 10 UN Security Council 1999. 5

82

K. Okimoto

mandates.11 In a rare case, a UN peacekeeping operation, the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO), was specifically mandated to carry out targeted offensive operations through its Intervention Brigade to neutralize armed groups in 2013.12 Many of these operations have been deployed to situations where NIACs were ongoing, and have become engaged in hostilities with armed groups. This issue of when personnel of a UN peacekeeping operation are protected under international law and when they are not is not an academic one. It has an impact at the operational level, as parties to the conflict, in order to carry out their military operations lawfully, would be required to ascertain whether personnel of a UN peacekeeping operation are protected, and if so, which ones. Similarly, at the criminal prosecution level, courts would be required to ascertain whether such personnel were protected or not for the purpose of assessing whether or not attacks against them constituted a crime. This chapter, therefore, reviews the current state of discussion on the legal protection of personnel of UN peacekeeping operations during armed conflicts, and the loss thereof. The focus of this chapter is peacekeeping operations of the United Nations, which are normally established by the Security Council as its subsidiary organs, but which could also be established by the General Assembly. This chapter does not deal with peacekeeping operations of other organizations. In particular, this chapter focuses on UN peacekeeping operations deployed to situations of NIAC,13 as the issues mentioned above have predominantly arisen in this context. Therefore, this chapter mainly refers to the IHL rules applicable to NIAC, but, on occasion, also refers to IHL rules applicable to international armed conflict (IAC) where appropriate.14 This chapter does not discuss the general questions pertaining to IHL and UN peacekeeping operations, such as the applicability of IHL to such operations,15

11 African Union-United Nations Hybrid Operation un Darfur (UNAMID), United Nations Mission in the Central African Republic and Chad (MINURCAT), United Nations Mission in the Republic of South Sudan (UNMISS), United Nations Mission in the Sudan (UNMIS), United Nations Interim Force in Lebanon (UNIFIL), United Nations Mission of Support in East Timor (UNMISET), United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA), United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA), United Nations Operation in Côte d’Ivoire (UNOCI), United Nations Operation in Burundi (ONUB), United Nations Organization Interim Security Force for Abyei (UNISFA), United Nations Organization Mission in the Democratic Republic of the Congo (MONUC) and United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO), United Nations Transitional Administration in East Timor (UNTAET). 12 See UN Security Council 2013a, para 12(b); UN Security Council 2014a, para 4(b); UN Security Council 2015a, para 9(e); UN Security Council 2016a, para 35(i)(d). 13 For the definition of the term ‘non-international armed conflict’, see generally, ICRC 2008. 14 For the definition of the term ‘international armed conflict’, see ICRC 2008. 15 See generally, Bowett 1964; Seyersted 1966; Schindler 1984; Palwankar 1993; Greenwood 1998; Shraga 1998; Faite and Grenier 2004; Kolb 2005; Zwanenburg 2005; Ferraro 2013.

4 The Legal Protection of Personnel of United Nations …

83

whether such operations could become a party to an armed conflict and, if so, whether such an armed conflict is an IAC or a NIAC,16 as they are discussed extensively elsewhere.

4.2

Relevant Aspects of United Nations Peacekeeping Operations

Before discussing the main theme of this chapter, it may be useful to highlight several aspects of UN peacekeeping operations which are particularly relevant to the issue. First, UN peacekeeping operations are normally composed of various categories of personnel, such as a civilian component, which include UN officials tasked to carry out various mandates such as political, human rights and humanitarian mandates; a police component, which may include personnel of formed police units or individual police officers contributed by Member States; and a military component, which may include military personnel of national contingents and military observers contributed by Member States.17 In this respect, if a UN peacekeeping operation becomes engaged in hostilities in a NIAC, the legal protection to which its personnel are entitled may vary. Secondly, the UN Security Council has given diverse mandates to UN peacekeeping operations and has often authorized them to carry out those mandates by using ‘all necessary means’. Such mandates have included those that may involve the use of force beyond self-defence, such as to protect civilians;18 to protect UN personnel, installations and goods;19 to disarm armed groups;20 to ensure unhindered humanitarian access;21 to deter threats and take active steps to prevent the

16

See, for example, Bouvier 1995, p 652; Kirsch 1995, p 105; Greenwood 1998, pp 22–28; Kolb 2003, p 67; Zwanenburg 2005, pp 182–186; Sassòli 2008, p 104; Vité 2009, pp 19–20; Garraway 2010, pp 132–133; Kleffner 2010, p 58; ICRC 2011, pp 10 and 31; David 2013, pp 664–665; Ferraro 2013, pp 596–597; Sheeran and Case 2014, pp 6–7; Clapham 2015, pp 8–9; Moir 2015, pp 399–400; ICRC 2016, paras 411–413. 17 See, for example, Security Council resolution 2149 (2014) of 10 April 2014 which established the latest United Nations peacekeeping operation, MINUSCA. UN Security Council 2014b, para 20. 18 See, for example, UN Security Council 2015b, paras 31 and 32(a)(i); UN Security Council 2016a, paras 34 and 35(i)(a); UN Security Council 2016b, paras 17 and 19(c). 19 See, for example, UN Security Council 2015b, paras 31 and 32(d); UN Security Council 2016a, paras 34 and 35(iv); UN Security Council 2016b, paras 17 and 19(e); UN Security Council 2016c, para 10. 20 See, for example, UN Security Council 2015b, paras 31 and 32(b)(viii). 21 See, for example, UN Security Council 2016b, paras 17 and 19(g).

84

K. Okimoto

return of armed elements;22 to provide operational support to the host State’s armed forces;23 and to neutralize armed groups.24 These mandates have often increased the possibility of a UN peacekeeping operation becoming involved in hostilities and, as a consequence, have raised concerns as to whether its personnel who were implementing those mandates were protected by IHL or the Safety Convention. Thirdly, UN peacekeeping operations have, in recent decades, been carrying out their activities in more diverse circumstances. In many cases, peacekeeping operations have been deployed to situations where ceasefires have been agreed upon between the parties to the conflict, but they have increasingly been deployed to situations where armed conflicts were ongoing, such as in Bosnia and Herzegovina and Somalia in the early 1990s, and more recently in the Democratic Republic of the Congo (DRC), Mali and South Sudan. Even where peacekeeping operations have made efforts to refrain from engaging in hostilities with the parties to the existing conflict, there have been a number of instances in which they were attacked by armed groups and were obliged to respond to them, including in self-defence. UN peacekeeping operations have also carried out activities on their own initiative that may make them part of the hostilities in a pre-existing conflict. For example, UN peacekeeping operations have provided various types of support to States’ armed forces, ranging from the provision of logistical support, to the planning of military operations and the provision of combat support.25 Some UN peacekeeping operations have carried out military operations on their own, or with the support of a State’s armed force, against organized armed groups.26 These aspects of recent UN peacekeeping operations have prompted much debate on the issue of when their personnel are protected by IHL or the Safety Convention and when they are not.

22

See, for example, UN Security Council 2016b, paras 17 and 19(c)(ii) and (d). See, for example, UN Security Council 2008, paras 3(g) and 5; UN Security Council 2016b, paras 17 and 19(a)(ii), (c)(ii) and (g). 24 UN Security Council 2013a, para 12(b); UN Security Council 2014a, para 4(b); UN Security Council 2015a, para 9(e); UN Security Council 2016a, paras 34 and 35(i)(d). 25 See, for example, in the context of MONUC and MONUSCO, UN Secretary-General 2004, para 23; UN Secretary-General 2009a, paras 11, 15, 20; UN Secretary-General 2009b, para 15; UN Secretary-General 2009c, paras 9, 19; UN Secretary-General 2009d, paras 5, 11; UN Secretary-General 2010a, paras 8, 10; UN Secretary-General 2010b, paras 10, 19, 21, 22; UN Secretary-General 2011c, paras 14, 20; UN Secretary-General 2012, paras 19, 26; UN Secretary-General 2013a, paras 15, 20; UN Secretary-General 2014a, paras 19, 21, 23, 39; UN Secretary-General 2015a, paras 36, 38; UN Secretary-General 2016, paras 24, 31, 37, 38. See also, in the context of MINUSMA, UN Secretary-General 2014b, para 51; UN Secretary-General 2015b, para 25; UN Secretary-General 2015c, para 22. 26 See, for example, UN Secretary-General 2011a, paras 7, 16; UN Secretary-General 2011b; UN Secretary-General 2011c, para 20; UN Secretary-General 2011d, paras 5, 6, 8; UN Secretary-General 2011e, para 18; UN Secretary-General 2012, para 26; UN Secretary-General 2015b, paras 18, 26. 23

4 The Legal Protection of Personnel of United Nations …

4.3

85

Protection Under International Humanitarian Law

In a situation of armed conflict, IHL is the primary area of international law that is applicable. However, the existing IHL treaties do not specifically provide for the protection of UN peacekeeping operations.27 Thus, there has been lack of clarity concerning the extent to which personnel of UN peacekeeping operations are protected by IHL treaties.

4.3.1

Protection Under the Rules Concerning Humane Treatment

As far as the humane treatment of persons in NIAC is concerned, para 1 of Article 3 common to the 1949 Geneva Conventions (CA3), which is specifically applicable in NIAC, provides that ‘[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely’, and prohibits specific acts such as violence to life and person, taking of hostages, and outrages upon personal dignity. The phrase ‘persons taking no active part in the hostilities’ is formulated broadly and covers all persons who do not take an active part in hostilities,28 regardless of their prior status, such as civilians or fighters.29 Furthermore, para 2 of CA3 stipulates that ‘[t]he wounded and sick shall be collected and cared for’ without making any distinction between categories of persons.30 Additional Protocol II of 1977 (AP II), which is also specifically applicable in NIACs, also provides in its Article 4(1) that ‘[a]ll persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted … shall in all circumstances be treated humanely, without any adverse distinction’. Article 5(1) also stipulates that ‘the following provisions shall be respected as a minimum with regard to persons deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained’. Article 6 on penal prosecutions, Article 7 on the protection and care for the wounded, sick and shipwrecked, and Article 8 on the search for the wounded, sick and shipwrecked also do not limit their application to specific categories of persons.31 Thus, while personnel of UN peacekeeping operations are not specifically mentioned, as long as they take no active part in hostilities, they would fall within

27 28 29 30 31

ICRC 1999, pp 22 and 23. ICRC 2016, para 545. Ibid., paras 521–523; Kleffner 2015, p 436. ICRC 2016, para 736; Kleffner 2015, p 445. Sandoz 1987, paras 4520, 4564, 4567, 4599, 4642.

86

K. Okimoto

the scope of CA3 and the relevant provisions of AP II mentioned above, and would be entitled to their protection, regardless of whether they had previously been engaged in hostilities or not.32 This was confirmed in several cases before the International Criminal Tribunals for Rwanda and the former Yugoslavia (ICTR and ICTY). For example, the ICTR, in the Bagosora et al. case examined the incident in which 10 Belgian military personnel of the United Nations Assistance Mission for Rwanda (UNAMIR) were beaten to death by members of the Rwandan army in April 1994 during a NIAC in Rwanda.33 The Trial Chamber recognized that ‘Belgian peacekeepers in the office were able to obtain a firearm from one of the attacking Rwandan soldiers and use it to defend themselves’.34 However, the Trial Chamber further noted that the Belgian military personnel ‘had been disarmed well before the attack against them’ and that ‘[t]he fact that one of the Belgians was able to obtain a weapon and use it for self-defence during the course of the attack [did] not alter their status’.35 The Trial Chamber, therefore, concluded that ‘the victims [the Belgian military personnel] … were not taking active part in the hostilities’36 and found Bagosora guilty of serious violations of CA3 and AP II for committing violence to life against the Belgian military personnel.37 For the same reasons,38 the Trial Chamber, in its judgment in the Ndindiliyimana et al. case issued in 2011, found Nzuwonemeye and Sagahutu guilty for violations of the same provisions for their involvement in the murder of the Belgian military personnel.39 Furthermore, in the Karadžić case, the ICTY dealt with a situation in which over 200 military personnel of the United Nations Protection Force (UNPROFOR) in Bosnia and Herzegovina were detained in 1995. Karadžić was charged with taking hostages as a violation of the laws or customs of war punishable under the ICTY

32 Bourloyannis-Vrailas 1995a, p 104; Greenwood 1996, pp 191–192; Greenwood 1998, p 31; Doria 2009, p 65; Shraga 2009, p 361; Gadler 2010, pp 589–590. 33 ICTR, Prosecutor v Bagosora et al., Trial Judgment, 18 December 2008, Case No. ICTR-98-41-T, para 783. 34 Ibid., para 789. 35 Ibid., para 2239. 36 Ibid., para 2240. 37 Ibid., paras 2245, 2258. The Appeals Chamber later found that Bagosora was not responsible for the deaths of the four Belgian military personnel who were killed before his arrival at the scene, but was still responsible for the deaths of the other six Belgian military personnel. ICTR, Bagosora and Nsengiyumva v Prosecutor, Appeals Judgment, 14 December 2011, Case No. ICTR-98-41-A, paras 634 and 742. 38 ICTR, Prosecutor v Ndindiliyimana et al., Trial Judgment, 17 May 2011, Case No. ICTR-00-56-T, paras 2140 and 2146. 39 Ibid., paras 2149, 2154, 2156, 2162. The Appeals Chamber later reversed the findings of the Trial Chamber with respect to Nzuwonemeye and parts of the findings with respect to Sagahutu. ICTR, Ndindiliyimana et al. v Prosecutor, Appeals Judgment, 11 February 2014, Case No. ICTR-00-56-A, para 449.

4 The Legal Protection of Personnel of United Nations …

87

Statute and CA3.40 The ICTY concluded that these military personnel were ‘persons taking no active part in hostilities and, as such, were afforded the protection of Common Article 3’,41 and found Karadžić guilty for his involvement in the crime of hostage-taking.42

4.3.2

Protection Under the Rules Concerning the Conduct of Hostilities

While these provisions concerning humane treatment do not make a distinction between different categories of persons, IHL treaty provisions concerning the conduct of hostilities, namely those contained in AP II, make a distinction between civilians and persons taking a direct part in hostilities, and prohibit attacks against the former. However, AP II does not specifically deal with personnel of UN peacekeeping operations. Therefore, there has been lack of clarity as to whether personnel of UN peacekeeping operations, in particular military personnel, would fall under the general category of civilians mentioned in AP II, and whether they would be entitled to the protection accorded to civilians.43 The ICC Statute was a first step towards clarifying this matter. Article 8(2)(e)(iii) provides that ‘[i]ntentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict’ is a war crime in NIACs. An identical provision is contained in Article 8(2)(b)(iii) in relation to IACs, as well as in Article 4(b) of the Statute of

40

ICTY, Prosecutor v Karadžić, Trial Judgment, 24 March 2016, Case No. IT-95-5/18-T, para 5852. 41 Ibid., para 5943. 42 Ibid., para 6071. 43 While the focus of this chapter is on NIACs, Article 37(1)(d) of 1977 Additional Protocol I, which only applies in IACs, prohibits the killing, injuring or capturing of an adversary by feigning protected status by the use of signs, emblems or uniforms of the United Nations, and Article 38(2) prohibits the use of the distinctive emblem of the United Nations, except as authorized by the United Nations. These provisions do not directly provide legal protection for personnel of United Nations peacekeeping operations. However, as far as Article 37(1)(d) is concerned, Committee III of the Diplomatic Conference at which Protocol I was negotiated stated that ‘the misuse of United Nations signs, emblems or uniforms would be perfidious in cases where the United Nations and its personnel enjoyed a neutral protected status, but not, of course in situations where the United Nations forces were involved as combatants in a conflict.’ Thus, the protected status of United Nations personnel was already recognized at the time, and it was also recognized that such protected status could be lost when United Nations forces were involved as combatants in a conflict. See Switzerland 1978, Vol. 15, at 382.

88

K. Okimoto

the Special Court for Sierra Leone44 and Article 6.1(e)(3) of regulation no. 2000/15 of the United Nations Transitional Administration in East Timor on the establishment of panels with exclusive jurisdiction over serious criminal offences.45 It is noted that, unlike IHL, these provisions do not directly provide legal protection to personnel of a UN peacekeeping operation. Instead, they only enable the prosecution of a person who may have committed the crime before the relevant courts. However, these provisions seem to have now been translated into an operational rule which is binding on the parties to an armed conflict during hostilities. Thus, the publication of the International Committee of the Red Cross (ICRC) entitled Customary International Humanitarian Law indicates that the following is a customary rule of IHL that applies in IACs and NIACs: ‘Directing an attack against personnel and objects involved in a peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians and civilian objects under international humanitarian law, is prohibited’.46 This rule, however, does not deal with the status of personnel of UN peacekeeping operations. While it seems to be clear that civilian personnel of a United Nations peacekeeping operation have the status of civilians under IHL, it is not clear whether military personnel also have that status as they are not normally considered as civilians. However, it has sometimes been argued that military personnel of a UN peacekeeping operation have the status of civilians.47 On this basis, it has also argued that the specific prohibition of attacks against the personnel of peacekeeping operations is redundant, as military personnel of such operations are considered civilians and are therefore already protected by the prohibition of attacks against civilians in general.48 Whatever the argument, the customary IHL rule in the ICRC’s publication mentioned above avoids addressing this question whether military personnel of a UN peacekeeping operation have the status of civilians, and focuses, instead, on the protection to which personnel of UN peacekeeping operations, both civilian and military, are entitled. Thus, the customary rule indicates that personnel of a peacekeeping mission are entitled to the protection given to civilians under IHL.

44 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone (with Statute), opened for signature 16 January 2002, 2178 UNTS 137, entered into force 12 April 2002. 45 UNTAET 2000. 46 Henckaerts and Doswald-Beck 2005, p 112. 47 See e.g., UN Security Council 1994, para 204; Bourloyannis-Vrailas 2000, p 363; UN Secretary-General 2000a, para 16; Bothe 2002, p 411; Henckaerts and Doswald-Beck 2005, p 112; Faite 2007, p 156; Special Court for Sierra Leone, Prosecutor v Sesay et al., Trial Judgment, 2 March 2009, Case No. SCSL-04-15-T (Sesay et al. Trial, 2009), paras 215 and 218; Ferraro 2013, p 570. 48 Ibid.

4 The Legal Protection of Personnel of United Nations …

89

The word ‘personnel’ in this context has been interpreted to include military personnel of a peacekeeping mission.49 As a consequence, when a UN peacekeeping operation is deployed to a situation in which a NIAC is taking place, and when its personnel are not engaged in the hostilities between the parties to the conflict, those personnel, both civilian and military, are protected by IHL, and the parties to the conflict are required not to direct attacks against them.

4.3.3

Loss of Protection Given to Civilians Under IHL on an Individual Basis

However, the legal protection given to civilians under IHL continues to apply to personnel of UN peacekeeping operations only ‘as long as they are entitled to the protection given to civilians … under international humanitarian law’. If they lose this protection, attacking those personnel would not be prohibited. Normally, civilians lose the protection from direct attacks if they take a direct part in hostilities. Thus, in the NIAC context, Article 13(3) of AP II provides that ‘[c]ivilians shall enjoy the protection afforded by this Part, unless and for such time as they take a direct part in hostilities.’ The ICRC also considers the following rule as a customary rule of IHL applicable in IACs and NIACs: ‘Civilians are protected against attack, unless and for such time as they take a direct part in hostilities’.50 In other words, the direct participation in hostilities is the decisive factor to determine whether a person is protected from direct attack or not. The concept of ‘direct participation in hostilities’ has been and continues to be controversial. The ICRC examined this concept comprehensively in its publication entitled Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law,51 but the concept still remains open to different interpretations. However, in essence, this ICRC publication suggests that a civilian is taking a direct part in hostilities when he or she is acting in support of a party to the conflict and carrying out acts which may adversely affect the military operations or military capacity of the enemy, or which may inflict death, injury or destruction on persons or objects protected against direct attack. According to this publication, the direct participation continues while a civilian is engaged in 49 Sesay et al., Trial, 2009, above n. 47, para 1937; Special Court for Sierra Leone, Prosecutor v Sesay et al., Appeals Judgment, 26 October 2009, Case No. SCSL-04-15-A (Sesay et al., Appeals, 2009), para 531; ICC, Prosecutor v Abu Garda, Decision on the Confirmation of Charges, 8 February 2010, Case No. ICC-02/05-02/09 (Abu Garda 2010), para 132; ICC, Prosecutor v Banda and Jerbo, Corrigendum of the ‘Decision on the Confirmation of Charges’, 7 March 2011, ICC-02/05-03/09 (Banda and Jerbo 2011), para 76; Bothe 2002, p 411; Henckaerts and Doswald-Beck 2005, p 112; Faite 2007, p 156; Cottier 2008, p 334; Ferraro 2013, p 570. 50 Henckaerts and Doswald-Beck 2005, p 19. 51 ICRC 2009.

90

K. Okimoto

‘measures preparatory to the execution of a specific act of direct participation in hostilities, as well as the deployment to and the return from the location of its execution’.52 Outside this timeframe, the civilian concerned is protected from direct attack under IHL. In other words, a civilian could lose and regain the legal protection under IHL, depending on whether he or she is directly participating in hostilities. In this connection, as personnel of a UN peacekeeping operation are also entitled to the protection given to civilians under IHL, it seems logical that they lose such protection in the same manner as ordinary civilians. In other words, such personnel could lose the protection only while they take a direct part in hostilities. This appears to be the approach taken by the Special Court for Sierra Leone (SCSL) and more recently by the ICC.53 In its judgment in the Sesay et al. case, the SCSL Trial Chamber examined 14 incidents which occurred in 2000, in which the Revolutionary United Front (RUF), an organized armed group which was a party to the NIAC in Sierra Leone at the time, ill-treated, captured, and attacked a number of military personnel of the United Nations Mission in Sierra Leone (UNAMSIL), and fired at a helicopter of UNAMSIL.54 The Trial Chamber recognized that, in some instances, UNAMSIL engaged in hostilities with RUF, such as when UNAMSIL military personnel attempted to repel the attack by RUF.55 In analysing Article 4(b) of the SCSL’s Statute, which, among other things, criminalizes attacks against personnel of a peacekeeping mission, the Trial Chamber stated that ‘personnel of peacekeeping missions are entitled to protection as long they are not taking a direct part in hostilities – and thus have become combatants – at the time of the alleged offence.’56 It further stated that ‘[w]here peacekeepers become combatants, they can be legitimate targets for the extent of their participation in accordance with international humanitarian law’.57 With respect to the incidents which the Trial Chamber examined, it concluded that ‘UNAMSIL personnel were not taking direct part in hostilities against the RUF at the time of attacks. Their use of force in self-defence did not make them combatants. The Chamber is therefore satisfied that the peacekeepers were entitled in these circumstances to the protection guaranteed to civilians under the international law of armed conflict’.58 On this basis, the Trial Chamber concluded that Sesay, Kallon

52

Ibid., p 65. This also appears to be the approach taken in the Secretary-General’s Bulletin on the observance by United Nations forces of international humanitarian law. UN Secretary-General 1999, para 1.1. 54 Sesay et al., Trial, 2009, above n. 47, paras 1890, 1892, 1895, 1899 and 1900. 55 Ibid., paras 1830, 1843 and 1859. 56 Ibid., para 233. 57 Ibid. 58 Ibid., para 1937. 53

4 The Legal Protection of Personnel of United Nations …

91

and Gbao were responsible for their involvement in the attacks against UNAMSIL military personnel.59 The SCSL Appeals Chamber elaborated on the Trial Chamber’s analysis. It first recalled the factors set out by the Trial Chamber in determining whether peacekeeping personnel were entitled to the protection given to civilians under IHL, and stated that ‘of these factors, the most important are those that relate to the facts on the ground, in particular, any use of force by the peacekeeping mission.’60 It then stated that ‘force was used [by UNAMSIL military personnel], but only in self-defence … it is settled law that peacekeepers – like civilians – are entitled to use force in self-defence; such use does not constitute taking a direct part in hostilities’.61 The ICC has also dealt with the matter in the Abu Garda case62 and Banda and Jerbo case.63 In these cases, Pre-Trial Chamber I dealt with an incident in which organized armed groups in Darfur, Sudan, which were parties to a NIAC, allegedly directed an attack against a base of the African Union Mission in Sudan (AMIS) in 2007. As far as AMIS military personnel are concerned, the Chamber first noted that ‘personnel involved in peacekeeping missions enjoy protection from attacks unless and for such time as they take a direct part in hostilities or in combat-related activities … such protection does not cease if such persons only use armed force in exercise of their right of self-defence.’64 The Chamber recognized that some AMIS personnel used force in self-defence during the attack against the AMIS base,65 but also stated that ‘no evidence suggest[s] that AMIS personnel took any direct part in hostilities or used force beyond self-defence.’66 On this basis, the Chamber found that ‘there [were] substantial grounds to believe that AMIS personnel were entitled to the protection afforded to civilians at the time relevant to the present case’.67 The SCSL and the ICC dealt with situations where military personnel of peacekeeping operations were attacked and reacted in self-defence, but the 59

Ibid., paras 680, 683 and 686. Sesay et al., Appeals, 2009, above n. 49, para 529. 61 Ibid., para 531. 62 Abu Garda 2010, above n. 49. The Pre-Trial Chamber declined to confirm the charges against Abu Garda. Therefore, there are no pending proceedings with respect to this case. 63 Banda and Jerbo 2011, above n. 49. The Pre-Trial Chamber confirmed the charges against Banda and Jerbo, thereby clearing the way to trial proceedings. It is noted that Pre-Trial Chamber II of the ICC also authorized investigation into alleged attacks against the personnel of UNOCI. ICC, Situation in the Republic of Côte d’Ivoire, Decision on the authorisation of an investigation into the situation in the Republic of Côte d’Ivoire, 3 October 2011, ICC-02/11 (Situation in Côte d’Ivoire). However, no charges concerning the crime of attacking personnel of a peacekeeping mission have been filed. ICC, Prosecutor v Gbagbo, Decision on the confirmation of charges against Laurent Gbagbo, 12 June 2014, ICC-02/11-01/11 and Prosecutor v Blé Goudé, Decision on the confirmation of charges against Blé Goudé, 11 December 2014, ICC-02/11-02-11. 64 Abu Garda 2010, above n. 49, para 83. 65 Banda and Jerbo 2011, above n. 49, para 75. 66 Abu Garda 2010, above n. 49, para 131. 67 Ibid., para 132; Banda and Jerbo 2011, above n. 49, para 76. 60

92

K. Okimoto

approach taken by these courts could be relevant in situations where such personnel actively support the armed forces of a host State that is engaged in a NIAC against organized armed groups. For example, from the first half of the 2000s, the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC) began providing various forms of support to the armed forces of the DRC (FARDC) engaged in NIACs with armed groups, including the joint planning of military operations against armed groups and the provision of combat support to FARDC.68 More recently, the Multidimensional Integrated Stabilization Mission in Mali (MINUSMA) has also provided support in various ways, including combat support, to the French and Mali forces which have been engaged in NIACs with armed groups.69 In many of these instances, those military personnel who were actually providing such support may possibly have lost the protection given to civilians under IHL, but only for the time during which their acts constituted direct participation in hostilities. Furthermore, while the SCSL and the ICC only dealt with military personnel of peacekeeping operations, their analysis would also apply to civilian personnel. Thus, if civilian personnel of a UN peacekeeping operation take a direct part in hostilities, they would also lose the protection given to civilians under IHL for the duration of their engagement.70

4.3.4

Collective Loss of Protection Given to Civilians Under IHL

However, some authors have suggested that the loss of protection given to civilians under IHL would occur when a UN peacekeeping operation as a whole becomes a

68

See, for example, UN Secretary-General 2004, paras 23 and 24; Secretary-General 2005, paras 21, 22, 32, 33, 34. 69 Above n. 25, in particular regarding MINUSMA. 70 See, for example, ICRC 2015, p 25. Since 2009, the United Nations Support Office to the African Union Mission in Somalia (UNSOA) and its successor, the United Nations Support Office in Somalia (UNSOS), which are largely composed of civilian personnel, have provided logistical support to the African Union Mission in Somalia (AMISOM), which has been engaged in an armed conflict with armed groups in Somalia. However, it is unlikely that the support provided by civilian personnel of UNSOS to AMISOM amounts to a direct participation in hostilities as the support is limited mainly to the provision of materials and services, such as rations, fuel, water, accommodation and infrastructure, maintenance services, armoured personnel carriers, engineering equipment, medical support, aviation, strategic communications explosive hazard management capacities and strategic personnel and equipment movements. See UN Security Council 2015c, para 2(a). Such support does not appear to fall within the ICRC’s standard that a civilian is taking a direct part in hostilities when he or she is acting in support of a party to the conflict and carrying out acts which may adversely affect the military operations or military capacity of the enemy, or which may inflict death, injury or destruction on persons or objects protected against direct attack. See ICRC 2009.

4 The Legal Protection of Personnel of United Nations …

93

party to a conflict. According to these authors, when a UN peacekeeping operation becomes a party to a conflict, all military personnel lose, en bloc, the protection given to civilians under IHL.71 This argument is based on the logic that, when ordinary armed forces of a State become engaged in a NIAC with an organized armed group, all members of those armed forces become lawful targets.72 According to this approach, military personnel of a UN peacekeeping operation collectively lose the protection under IHL, even if some of the military personnel are not directly participating in hostilities at all, and the loss of protection continues until the end of the armed conflict.73 This approach would not have an impact on civilian personnel, as they would only lose their protection on an individual basis when they take a direct part in hostilities, and only while they do so. The above-mentioned approach is in marked contrast to the approach taken by the SCSL and the ICC, which considers that military personnel of a peacekeeping operation lose the protection given to civilians under IHL on an individual basis. In other words, only those military personnel who are taking a direct part in hostilities lose the protection given to civilians under IHL, and other military personnel remain entitled to it. Furthermore, according to this approach, the loss of protection only occurs for the duration of such direct participation in hostilities, and not until the end of the armed conflict.

4.3.5

Various Ways in Which the Loss of Protection Could Occur

It is doubtful whether the loss of protection always occurs in either one of the approaches described above. In practice, the loss of protection for military personnel of a UN peacekeeping operation could occur in a variety of ways. For example, at the initial stages of the deployment, a peacekeeping operation may not have used force at all but may subsequently be targeted by armed groups and are compelled to use force in self-defence. The initial use of force in self-defence may not render the operation a party to an armed conflict. Military

71

See, for example, Glick 1995, p 106; Gadler 2010, p 598; Engdahl 2012, pp 278–279; Ferraro 2013, p 600; Fleck 2013, p 625; Sheeran and Case 2014, p 7; ICRC 2015, p 25; Pacholska 2015, p 68. 72 See, for example, Ferraro 2013, p 605. Another author draws an analogy between a UN peacekeeping operation and a non-State armed group (instead of armed forces of a State). This author recalls that, when an armed group becomes a party to an armed conflict, the ICRC considers that their members with a ‘continuous combat function’ are not entitled to the protection from direct attacks. Following this approach, this author argues that members of a UN peacekeeping operation with a ‘continuous combat function’ lose the protection from direct attacks, while other members of the operation are protected. Pacholska 2015, pp 57 and 69. See also Sheeran and Case 2014, p 10. 73 Engdahl 2012, pp 278–279; Ferraro 2013, pp 606–607; ICRC 2015, p 25.

94

K. Okimoto

personnel using force in self-defence during this timeframe would also not be considered as taking a direct part in hostilities, as such acts would not meet one of the criteria for direct participation in hostilities, namely the requirement that the acts should be in support of a party to the conflict.74 Therefore, during this timeframe, these military personnel would be entitled to the protection given to civilians under IHL. However, the subsequent and repeated use of force in self-defence could potentially meet the conditions required to determine a situation as a NIAC, namely that there should be protracted armed violence with an organized armed group.75 Such a situation could make the entire peacekeeping operation a party to a conflict, in which case the military personnel of such operation could collectively lose the protection given to civilians under IHL. For example, in the Sesay et al. case referred to earlier, the SCSL examined 14 incidents which took place between 1 to 9 May 2000 in which UNAMSIL was attacked by RUF, an armed group in Sierra Leone, and noted that, in three incidents that took place on 2, 4 and 7 May 2000, UNAMSIL used force in self-defence.76 The SCSL concluded that, despite such use of force in self-defence, UNAMSIL military personnel were not taking a direct part in hostilities and that they were entitled to the protection given to civilians under IHL.77 The SCSL also did not indicate that UNAMSIL became a party to an armed conflict by such use of force in self-defence. However, if UNAMSIL had used force in self-defence in a more sustained manner, as opposed to a sporadic manner, such use of force could have raised questions as to whether UNAMSIL had become a party to an armed conflict, and whether its military personnel had collectively lost the protection given to civilians under IHL. In a separate scenario, a UN peacekeeping operation could initially be engaged in providing support to the armed forces of the host State, such as transporting troops to the frontline and providing intelligence for ongoing combat operations. During this timeframe, it could be argued that only those military personnel who were engaged in those acts would individually lose the protection given to civilians under IHL.78 Subsequently, military personnel may carry out combat operations against an armed group in support of the host State’s armed forces. Initially, it could be argued that only those military personnel who were actually carrying out those combat operations would lose the protection.

74

ICRC 2009, p 46. ICTY, Prosecutor v Tadic Case, Jurisdiction, Appeals, 2 October 1995, Case No. IT-94-1, para 70. 76 Sesay et al., Trial, 2009, above n. 47, paras 1830, 1843 and 1859. 77 Ibid., para 1937. 78 An argument has also been made that such support to the armed forces of a State would render a peacekeeping operation a party to the conflict. See Ferraro 2013, pp 583–587; ICRC 2015, pp 22–23. Some experts have, however, questioned this approach. See, for example, American Society of International Law 2014, p 157; Royal Institute of International Affairs 2014, p 6. 75

4 The Legal Protection of Personnel of United Nations …

95

However, if such combat operations are carried out repeatedly against an armed group, at some point, the confrontation could become one in which two organized armed forces, a UN peacekeeping operation and an organized armed group, are carrying out organized violence against each other, and not merely ad hoc clashes between an organized armed group and some military personnel of a peacekeeping operation. If the situation reaches such a point, the entire peacekeeping operation concerned could potentially be considered as a party to a NIAC,79 in which case military personnel could collectively lose the protection given to civilians under IHL. Therefore, there could possibly be a situation where military personnel of a peacekeeping operation initially lose the protection on an individual basis, but lose that protection collectively when the peacekeeping operation subsequently becomes a party to a conflict. For example, in the early 2000s, MONUC began providing support to FARDC, such as the joint planning to support FARDC operations to disarm an armed group in the eastern DRC.80 Over the subsequent years, on a number of occasions, MONUC became directly engaged in hostilities with armed groups, which has continued after MONUC’s name was changed to MONUSCO in 2010. In March 2013, the Security Council authorized MONUSCO, ‘through the Intervention Brigade … to prevent the expansion of all armed groups, neutralize these groups, and to disarm them in order to contribute to the objective of reducing the threat posed by armed groups on the state authority and civilian security in eastern DRC and to make space for stabilization activities’.81 Shortly after this mandate was given, MONUSCO provided heavy combat support to FARDC82 to enable it to carry out effective military operations against an armed group in the eastern DRC, Mouvement du 23 mars (M23), until it was defeated in November 2013, which

79 See, for example, High-level Independent Panel on Peace Operations 2015, para 122. In the Mudacumura case, while it fell short of declaring that MONUC was a party to a NIAC, Pre-Trial Chamber II of the ICC stated that ‘there was an armed conflict in the territory of the DRC … of a non-international character’ and that ‘this armed conflict was between the FDLR … and the FARDC, in coalition with … MONUC during Kimia II and Amani Leo [FARDC operations supported by MONUC]’. ICC, Prosecutor v Mudacumura, Decision on the Prosecutor’s Application under Article 58, 13 July 2012, Case No. ICC-01/04-01/12, paras 31 and 34. See also ICC, Prosecutor v Mbarushimana, Decision on the confirmation of charges, 16 December 2011, Case No. ICC-01/04-01/10, paras 95 and 107. With respect to the situation in Côte d’Ivoire, Pre-Trial Chamber II of the ICC took note of the ICC Prosecutor’s intention to assess whether the support of UNOCI and French forces to pro-Ouattara forces in order to arrest Mr. Laurent Gbagbo, former President of Côte d’Ivoire, in April 2011 rendered the conflict an IAC, but it appears that such an assessment has not been undertaken. Situation in Côte d’Ivoire, above n. 63, para 127. 80 UN Secretary-General 2004, paras 23 and 24. 81 UN Security Council 2013a, para 12(b). At the time of writing, the latest extension of this mandate was contained in UN Security Council (2017), para 34(i)(d). 82 UN Secretary-General 2013a, paras 15, 35, 37; UN Secretary-General 2013b, paras 17–20, 37, 40.

96

K. Okimoto

prompted the question whether MONUSCO had become a party to a conflict and whether its military personnel had collectively lost the protection given to civilians under IHL.83

4.4 4.4.1

Protection Under the Convention on the Safety of United Nations and Associated Personnel Protective Scope of the Safety Convention

The Safety Convention supplemented the protection for UN peacekeeping operations already provided for in IHL, but also prompted issues that would potentially further complicate the determination of whether personnel of a UN peacekeeping operation are protected or not. The Safety Convention, among other things, prohibits attacks against UN and associated personnel; requires States parties to criminalize such attacks in their national laws and to submit relevant cases to the competent authorities of the State party concerned for the purpose of prosecution;84 and requires States parties to take all appropriate measures to ensure the safety and security of such personnel. Ninety-four States are parties to the Safety Convention at the time of writing, but most States in which UN peacekeeping operations are located are not parties to the Convention. However, many of such host States, such as the DRC, the Sudan and South Sudan, have accepted to apply the Safety Convention through the status-of-forces agreements concerning specific UN peacekeeping operations which they concluded with the United Nations.85 These States are, therefore, bound to take measures to protect the UN personnel concerned pursuant to their obligations under the Safety Convention. One of the most difficult questions has been to identify the situations in which UN peacekeeping operations are covered by the Safety Convention. Article 2(2) of the Safety Convention first provides that ‘[t]his Convention shall not apply to a United Nations operation authorized by the Security Council as an enforcement action under Chapter VII of the Charter of the United Nations in which

83

Sheeran and Case 2014, pp 6–9. See also UN International Law Commission 1996, para 104. 85 See, for example, Protocol amending the Agreement between the United Nations and the Democratic Republic of the Congo on the status of the United Nations Mission in the Democratic Republic of the Congo, opened for signature 6 June 2006, entered into force 6 June 2006; Agreement between the United Nations and the African Union and Sudan concerning the status of the African Union/United Nations Hybrid Operation in Darfur, opened for signature 9 February 2008, 2503 UNTS 217, entered into force 9 February 2008, para 48; Status of Forces Agreement between the United Nations and the Government of the Central African Republic relating to the United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic, opened for signature 2 September 2014, entered into force 2 September 2014, para 49. 84

4 The Legal Protection of Personnel of United Nations …

97

any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict applies.’ The Safety Convention as a whole ceases to apply in such circumstances. IHL rules applicable in IACs, therefore, apply instead of the Safety Convention. In this scenario, a conflict between the Safety Convention and IHL does not arise as they are mutually exclusive.86 However, as far as NIACs are concerned, a provision similar to Article 2(2) is not contained in the Safety Convention. There is also no provision that specifically provides that the Safety Convention applies during NIACs. There is, therefore, lack of clarity as to whether the Safety Convention as a whole ceases to apply to a UN peacekeeping operation when it becomes engaged in a NIAC, or whether the Convention continues to apply to such an operation. Even if the Convention continues to apply to such a peacekeeping operation, it is not clear whether it applies to all or part of the personnel of the operation. If the two approaches under IHL described in the previous section are followed, the Safety Convention would cease to apply to military personnel when they take a direct part in hostilities, or when a UN peacekeeping operation becomes a party to a NIAC. It would also cease to apply to civilian personnel who take a direct part in hostilities, but only for the duration of their direct participation in hostilities. Other personnel would continue to be protected by the Safety Convention. However, in the absence of any specific provision, it is not clear whether the Safety Convention follows the approaches under IHL. Thus, there could be a situation where all personnel of a United Nations peacekeeping operation are fully protected by the Safety Convention and any attack against them would be prohibited while, at the same time, IHL permits attacks against some of those personnel, in which case parties to the conflict would be faced with conflicting rules. For example, if, in the Sesay et al. case, the SCSL had ruled that UNAMSIL personnel were taking a direct part in hostilities in an ongoing NIAC, attacks against those personnel would not have been prohibited by IHL. However, if Sierra Leone was a party to the Safety Convention at the relevant time, attacks against those UNAMSIL personnel would have been prohibited by the Safety Convention. This apparent conflict between IHL and the Safety Convention becomes most evident in relation to Article 7(1) of the Safety Convention, which provides that ‘United Nations and associated personnel, their equipment and premises shall not be made the object of attack or of any action that prevents them from discharging their mandate.’ Unlike IHL, this provision does not make a distinction between personnel of a UN peacekeeping operation who are engaged in a NIAC (either because of their direct participation in hostilities or because the operation has become a party to the conflict) and those who are not. Thus, at a first glance, Article 7(1) would prohibit attacks against any personnel of a UN peacekeeping operation.

86

The scope of this exclusion clause has been a subject of some debate. Bloom 1995, pp 625– 626; Bourloyannis-Vrailas 1995b, pp 567–568; Bouvier 1995, pp 660–661; Kindred 1995, p 275; Kirsch 1995, p 105; Arsanjani 1996, pp 132–134; Greenwood 1996, pp 197–202; Engdahl 2005, pp 60–61; Zwanenburg 2005, pp 168–170.

98

K. Okimoto

At the same time, IHL does not prohibit attacks against personnel of a UN peacekeeping operation who are engaged in a NIAC. Therefore, the above interpretation of Article 7(1) of the Safety Convention would create a situation where the Safety Convention and IHL are in direct conflict.

4.4.2

Drafting History of the Safety Convention and its Optional Protocol

This issue was discussed at the time the Safety Convention was being negotiated, but it was not fully resolved. The official records of the negotiations indicate that the general idea that personnel of a UN operation who are engaged in an armed conflict should be excluded from the scope of the proposed convention was accepted in principle. That idea was clearly reflected in Article 2(2) which excludes the application of the Safety Convention to certain UN operations engaged in an international armed conflict. However, as far as UN peacekeeping operations engaged in NIACs are concerned, neither the Safety Convention as adopted nor the official records of the negotiations clarify whether such exclusion also applies to those personnel who were engaged in a NIAC. One view was that, when personnel of a United Nations peacekeeping operation were engaged in either an IAC or a NIAC, IHL applied instead of the proposed convention.87 In this regard, it was stated that ‘[i]nternational humanitarian law would therefore be applicable whenever military personnel of the United Nations operations were engaged in combat with organized armed forces having an identifiable command structure, carrying arms openly and controlling part of the territory of the host State.’88 It was also stated that this position should not be limited to IACs.89 Two concrete draft articles which followed this approach were proposed. One proposal read as follows: ‘If United Nations and associated personnel become engaged in an armed conflict [as a party to that conflict], the international rules applicable to such conflicts apply.’90 The other proposal read as follows: ‘The present Convention shall not apply to a United Nations operation authorized by the Security Council as an enforcement action under Chapter VII of the Charter of the United Nations and in which United Nations personnel may be involved as combatants against forces operating in circumstances where international humanitarian law is applicable.’91

87

Ad Hoc Committee 1994a, paras 76, 79 and 169. See also Bourloyannis-Vrailas 1995b, p 568; Arsanjani 1996, pp 143–145; Sheeran and Case 2014, p 11. 88 Ad Hoc Committee 1994b, annex I, para 13. 89 Ibid., para 14. 90 Ad Hoc Committee 1994a, p 56. 91 Ad Hoc Committee 1994b, annex I, para 12.

4 The Legal Protection of Personnel of United Nations …

99

On the other hand, the following proposal was also made: ‘This Convention shall not apply to a United Nations operation authorized by the Security Council as an enforcement action under Chapter VII of the Charter of the United Nations when any of its personnel are engaged as combatants in an international armed conflict of the kind referred to in common Article 2 of the Geneva Conventions of 12 August 1949.’92 This proposal appeared to exclude only those military personnel of a United Nations operation that was a party to an IAC. This is also confirmed by the fact that some States specifically objected to the suggestion that the exclusion should cover both IACs and NIACs.93 This indicates that there were some States that favoured the position that personnel of a UN peacekeeping operation who were engaged in a NIAC should be protected by the proposed convention.94 The process leading up to the 2005 Optional Protocol to the Safety Convention further revealed the diverging views on the question of whether personnel of a UN peacekeeping operation engaged in a NIAC were protected by the Safety Convention. It is noted that the aim of the proposed optional protocol to the Safety Convention was not to address this specific question, but to make the Safety Convention automatically applicable to UN operations other than peacekeeping operations, such as United Nations political missions and UN humanitarian, development and human rights presences.95 However, there was an attempt to address the specific question mentioned above during the negotiations. Initially, the question was incidentally dealt with in the Secretary-General’s report proposing an optional protocol to the Safety Convention. In explaining the scope of UN operations covered by the Safety Convention, the Secretary-General noted that ‘[t]he exclusion from the scope of application of the Convention of Chapter VII United Nations operations carried out in situations of international armed conflict, gives rise to the suggestion that enforcement actions carried out in situations of internal armed conflict (UNOSOM II type of operations), are included within the scope of the Convention and subject to its protective regime.’96 During the negotiations on an optional protocol, Costa Rica, in particular, seized on this part of the Secretary-General’s report and attempted to clarify the relationship between the Safety Convention and IHL. It initially proposed the following draft article: ‘The Convention shall not apply to any United Nations operation in which any personnel are engaged as combatants against organized armed forces and to which the international law of armed conflict applies.’97 This was later modified to read as follows: ‘The parties to this Protocol shall not apply the Convention in 92

Ibid., para 11. This proposal was subsequently slightly modified. See Working Group 1994, at 7. The modified version eventually became Article 2(2) of the Safety Convention. 93 Ad Hoc Committee 1994b, annex I, para 14. 94 See UN General Assembly 1994c, p 15. See also Bloom 1995, p 625; Lepper 1996, pp 399– 406; Maybee 2002, pp 29–30; Zwanenburg 2005, p 170; Pejic 2011, p 194; Whittle 2015, pp 856 and 871. 95 UN Secretary-General 2000b, paras 7, 12, 27–35. 96 Ibid., para 9. 97 Working Group 2003, at 4.

100

K. Okimoto

respect of any acts governed by international humanitarian law performed during an armed conflict and directed against any United Nations or associated personnel who are not entitled to the protection given to civilians under the international law of armed conflict’.98 Costa Rica explained the rationale for this proposal as follows: ‘International humanitarian law regulates conduct during hostilities, so that it would be applicable to United Nations forces that, as combatants, might be subject to legitimate attacks in certain situations, such as in cases of internal armed conflict’.99 This proposal gained some support during the negotiations.100 It was noted that the proposal would complement Article 2(2) of the Safety Convention and would assist in covering both IACs and NIACs,101 thereby clarifying that the Safety Convention would not apply to personnel of a UN peacekeeping operation who were engaged in either an IAC or a NIAC. However, the proposal of Costa Rica was also met with objection. Some States appeared to suggest that the Safety Convention was not intended to exclude personnel of a UN peacekeeping operation who were engaged in a NIAC from its protection.102 It was also noted that the saving clause in Article 20(a) of the Safety Convention adequately covered the concerns of Costa Rica.103 This article provides that ‘[n]othing in this Convention shall affect … [t]he applicability of international humanitarian law…in relation to the protection of United Nations operations and United Nations associated personnel or the responsibility of such personnel to respect such law and standards’. However, the meaning and effect of Article 20(a) have also been debated and do not appear to be straightforward.104 This provision confirms, in general terms, that the protection under IHL continues to be applicable to UN personnel, but does not provide any guidance as to when the Safety Convention applies and when it does not. Similarly, this provision confirms that UN personnel continue to bear the responsibility to respect IHL, but does not provide any guidance as to when the Safety Convention applies and when it does not. Eventually, it was decided that the discussion on the proposal by Costa Rica should be addressed separately from the negotiations on the optional protocol.105

98

Working Group 2004, at 5. Ad Hoc Committee 2004, para 39. Costa Rica also made the following reservation to the Safety Convention which, according to Costa Rica, reflected its position mentioned above: ‘The Government of the Republic enters a reservation to Article 2, para 2, of the Convention, to the effect that limiting the scope of application of the Convention is contrary to the pacifist thinking of our country and, accordingly, that, in the event of conflicts with the application of the Convention, Costa Rica will, where necessary, give precedence to humanitarian law.’ See also UN General Assembly 2001, para 33. 100 Ad Hoc Committee 2004, para 41; Working Group 2004, para 23; Ad Hoc Committee 2005, para 44. 101 Working Group 2004, para 23. 102 Ibid., para 26. 103 Ad Hoc Committee 2005, para 46. 104 Bouvier 1995, pp 26–27; Arsanjani 1996, p 143; Lepper 1996, pp 455–457. 105 Working Group 2004, para 29; Ad Hoc Committee 2005, para 51. 99

4 The Legal Protection of Personnel of United Nations …

101

However, there is no record that further discussion on this issue was held. Thus, while the process leading up to the 2005 Optional Protocol highlighted the issue of whether personnel of a UN peacekeeping operation who were engaged in a NIAC were protected by the Safety Convention, it did not ultimately resolve the issue.

4.4.3

Practice of the ICC

The practice after the adoption of the Safety Convention and its Optional Protocol has also not fully addressed this question. As far as the ICC Statute is concerned, the draft statute which was submitted to the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court contained a draft article on crimes against United Nations and associated personnel. This draft article was based on the Safety Convention and the draft Code of Crimes against the Peace and Security of Mankind adopted by the International Law Commission in 1996,106 and read as follows: For the purpose of the present Statute, ‘crimes against United Nations and associated personnel’ means any of the following acts [when committed intentionally and in a systematic manner or on a large scale against United Nations and associated personnel involved in a United Nations operation with a view to preventing or impeding that operation from fulfilling its mandate]: (a) Murder, kidnapping or other attack upon the person or liberty of any such personnel; (b) Violent attack upon the official premises, the private accommodation or the means of transportation of any such personnel likely to endanger his or her person or liberty.107

The draft article further provided that ‘[t]his article shall not apply to a United Nations operation authorized by the Security Council as an enforcement action under Chapter VII of the Charter of the United Nations in which any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict applies’.108 However, this draft article was abandoned when it became clear that acts that were already criminalized in specific treaties would not be included in the ICC Statute.109 The alternative proposal110 eventually became Articles 8(2)(b)(iii) and 8 (2)(d)(iii) of the ICC Statute which follows one of the approaches under IHL described in an earlier section of this chapter, rather than the approach under the Safety Convention. Thus, as discussed earlier in this chapter, under the ICC Statute, the sole factor that determines whether personnel of a UN peacekeeping operation 106

UN International Law Commission 1996, para 104. UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court 1998, p 28. 108 Ibid. 109 See Cottier 2008, p 330; Bourloyannis-Vrailas 2000, p 364; Engdahl 2012, p 268. 110 UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court United Nations 2002, pp 214 and 227. 107

102

K. Okimoto

were protected or not, is whether they were taking a direct part in hostilities or not at the relevant time. The ICC Statute, therefore, did not leave the uncertainty inherent in the Safety Convention as described above. As far as the ICC’s practice is concerned, the ICC has not dealt with the relationship between IHL and the Safety Convention and the question whether personnel of a UN peacekeeping operation continues to be protected by the Safety Convention even when they have become engaged in a NIAC.

4.4.4

Practice of the General Assembly and the Security Council

The practice of the General Assembly and the Security Council subsequent to the adoption of the Safety Convention is inconclusive. The General Assembly has adopted a number of resolutions dealing with the protection of UN personnel, but their content, at times, appears to be inconsistent. For example, General Assembly resolution 68/101 condemned ‘all threats and acts of violence against … United Nations and associated personnel’ and reaffirmed ‘the need to hold accountable those responsible for such acts’.111 On the other hand, General Assembly resolution 71/129 condemned ‘attacks intentionally directed against personnel involved in a peacekeeping mission in accordance with the Charter of the United Nations as long as they are entitled to protection from attack under international humanitarian law’ and reaffirmed ‘the need to prosecute, penalize and punish those responsible for such acts’.112 The former appears to consider any acts of violence against any UN personnel, including personnel of a UN peacekeeping operation who are engaged in armed conflict (including NIAC), as unlawful, whereas the latter appears to exclude personnel who are engaged in armed conflict. As far as the Security Council is concerned, it has reaffirmed, in general terms, ‘the obligation of all parties involved in an armed conflict to comply with international humanitarian law … to ensure the respect and protection of all … United Nations and associated personnel’.113 As it only refers to IHL, this statement appears to take the approach that personnel of a United Nations peacekeeping operation who are engaged in an armed conflict are not protected from attacks. However, on the other hand, the Security Council condemned attacks against personnel of specific peacekeeping operations who were engaged in hostilities against armed groups, and indicated that such attacks could constitute violations of or crimes under international law. For example, the United Nations Operation in Côte d’Ivoire (UNOCI) and the forces of Mr. Laurent Gbagbo, former President of Côte d’Ivoire, engaged in fighting in April 2011 during the crisis following the 111 112 113

UN General Assembly 2013, para 11. UN General Assembly 2016, para 11. UN Security Council 2014c.

4 The Legal Protection of Personnel of United Nations …

103

presidential election held in December 2010.114 The Security Council, in its resolution 2000 (2011) of 27 July 2011, ‘[s]trongly condemn[ed] … the attacks and harassment against United Nations Personnel that occurred during the post-electoral crisis and reiterat[ed] that these acts constitute[d] violations of international law’.115 Furthermore, in August and October 2013, the MONUSCO engaged in extensive fighting with an armed group in the eastern DRC, Mouvement du 23 mars (M23).116 In a statement of the President of the Security Council of 14 November 2013, the Security Council ‘condemn[ed] the violence caused by this rebellion [by M23], which has resulted in a significant loss of … lives of peacekeepers of [MONUSCO]’ and the Council ‘emphasize[d] … that those responsible for threats or attacks against peacekeepers must be held accountable’.117 Moreover, MINUSMA has also engaged in fighting with armed groups in Mali, in support of, or jointly with, the Mali armed forces or the French forces in 2014 and 2015.118 In a statement of the President of the Security Council of 6 February 2015, the Security Council ‘reiterate[d] its strongest condemnation of all attacks against MINUSMA peacekeepers, personnel and property, and underline[d] that attacks targeting peacekeepers may constitute war crimes under international law.’119 However, while, in these instances, the Security Council seemed to consider that the personnel of these UN peacekeeping operations were protected, it did not make a specific reference to the Safety Convention and indicate that those personnel were protected by that Convention.

4.4.5

Potential Issues of the Lack of Clarity with the Protective Scope of the Safety Convention

The above analysis indicates that, while the issue has been discussed on several occasions since 1993, the question whether personnel of a UN peacekeeping operation who are engaged in a NIAC are protected by the Safety Convention has still not been fully addressed. This lack of clarity could raise several issues. First, from an operational perspective, parties to NIACs could have difficulties in ascertaining who are protected and who are not. National legislation implementing the Safety Convention in the State in which the conflict is taking place may simply provide that it is a crime to

114

UN Secretary-General 2011b; UN Secretary-General 2011d, paras 5, 6, 8. UN Security Council 2011. 116 UN Secretary-General 2013a, paras 15, 20; UN Secretary-General 2013b, at 17. 117 UN Security Council 2013b. 118 UN Secretary-General 2015b, paras 18, 25, 26; UN Secretary-General 2015c, para 22. 119 UN Security Council 2015d. See also UN Security Council 2016b, thirtieth preambular paragraph. 115

104

K. Okimoto

attack personnel of a UN peacekeeping operation in accordance with the Safety Convention, but may not specify whether the legislation covers personnel who are engaged in a NIAC. In this context, a party to the conflict may consider that it is faced with conflicting rules: one which prohibits attacks against such personnel (the Safety Convention) and the other which does not prohibit attacks against such personnel (IHL). It would be difficult to predict how such a party to the conflict would react in such a situation. In particular, if UN personnel are conducting military operations alongside the armed forces of the host State, it is not clear whether a party to the conflict would make a distinction between the UN personnel and host State personnel, and only attack the latter, or consider that both of them are liable to attack. Furthermore, if a party to the conflict nevertheless proceeds to attack personnel of a UN peacekeeping operation who are engaged in a NIAC, such an incident could be brought before a court which has jurisdiction over crimes provided for in the Safety Convention. Such a court could also face the difficult issue of whether personnel of a UN peacekeeping operation engaged in a NIAC were protected by the Safety Convention. The response to this question would be decisive as an affirmative response could lead to a conviction, whereas a negative response could lead to a termination of the criminal proceedings. These issues are not merely an academic exercise. Some host States of UN peacekeeping operations, such as Mali, are parties to the Safety Convention while many others are not. However, as noted earlier, many of those which are not parties, such as the Central African Republic and the DRC, are now under an obligation, through the applicable status-of-forces agreements, to ensure that the provisions of the Safety Convention are applied to the peacekeeping operation present in their territory.120 Thus, the issues mentioned above may arise in practice in relation to many UN peacekeeping operations deployed to situations in which NIACs are taking place.

4.5

Conclusions

This chapter discussed the protection, under IHL and the Safety Convention, of personnel of UN peacekeeping operations in NIACs and highlighted the potential complexity in determining when such personnel are protected and when they are not. Under IHL, it is prohibited to direct attacks against personnel of UN peacekeeping operations, as long as they are entitled to the protection given to civilians under IHL. It has been said that this protection could be terminated by one of the following two approaches: either on an individual basis or collectively. International criminal tribunals have favoured the former approach and have examined whether specific personnel were taking a direct part in hostilities at the

120

See the status-of-forces agreements for MONUSCO, UNAMID and MINUSCA, above n. 85.

4 The Legal Protection of Personnel of United Nations …

105

relevant time and hence lost their protection, implying that other personnel, regardless of their civilian or military status, who were not taking a direct part in hostilities continued to be entitled to the protection given to civilians under IHL. However, there are others who argue that, when a UN peacekeeping operation becomes engaged in hostilities against an armed group, it becomes a party to a NIAC, and all military personnel collectively lose the protection, regardless of whether they are actually taking a direct part in the hostilities. The discussion has tended to focus on either of these approaches, but they do not appear to be mutually exclusive. Peacekeeping personnel could initially lose the protection given to civilians under IHL on an individual basis but later lose it collectively when the peacekeeping operation as a whole becomes a party to a conflict. The Safety Convention may further complicate the process of ascertaining whether personnel of a UN peacekeeping operation are protected from attacks. It could be argued that the Safety Convention prohibits attacks against personnel of a UN peacekeeping operation, even if they are engaged in a NIAC. Such an approach, however, would be in direct conflict with IHL as it does not prohibit attacks against personnel who are engaged in an armed conflict. On this basis, some authors have argued that personnel who are engaged in a NIAC are not protected by the Safety Convention. This uncertainty as to whether UN personnel engaged in a NIAC are protected by the Safety Convention could be a problem at the operational level, when parties to the conflict have to ascertain, in order to carry out their military operations lawfully, whether the personnel concerned are protected or not, and at the criminal prosecution level, when a competent court has to determine whether a crime has been committed or not.

References Ad Hoc Committee on the Elaboration of an International Convention dealing with the Safety and Security of United Nations and Associated Personnel (1994a) Report of the Ad Hoc Committee on the work carried out during the period from 28 March to 8 April 1994. UN Doc. A/AC.242/2. Ad Hoc Committee on the Elaboration of an International Convention dealing with the Safety and Security of United Nations and Associated Personnel (1994b) Report of the Ad Hoc Committee on the Elaboration of an International Convention dealing with the Safety and Security of United Nations and Associated Personnel. UN Doc. A/49/22. Ad Hoc Committee on the Scope of Legal Protection under the Convention on the Safety of United Nations and Associated Personnel (2004) Report of the Ad Hoc Committee on the Scope of Legal Protection under the Convention on the Safety of United Nations and Associated Personnel. UN Doc. A/59/52. Ad Hoc Committee on the Scope of Legal Protection under the Convention on the Safety of United Nations and Associated Personnel (2005) Report of the Ad Hoc Committee on the Scope of Legal Protection under the Convention on the Safety of United Nations and Associated Personnel. UN Doc. A/60/52. American Society of International Law (1952) Report of committee on study of legal problems of the United Nations: Should the laws of war apply to United Nations enforcement action? Proceedings of the American Society of International Law 46:216–220.

106

K. Okimoto

American Society of International Law (2014) Peace forces at war: Implications under international humanitarian law. Proceedings of the Annual Meeting of the American Society of International Law 108:149–163. Arsanjani M (1996) Defending the blue helmets: Protection of United Nations personnel. In: Condorelli L et al. (eds) Nations Unies et le droit international humanitaire: Actes du Colloque international à l’occasion du cinquantième anniversaire de l’ONU. Éditions Pedone, Paris, pp 115–147. Bangura MA (2010) Prosecuting the crime of attack on peacekeepers: A prosecutor’s challenge. Leiden Journal of International Law 23:165–181. Bloom E (1995) Protecting peacekeepers: The Convention on the Safety of United Nations and Associated Personnel. American Journal of International Law 89:621–631. Bothe M (2002) War Crimes. In: Cassese A et al. (eds) The Rome Statute of the International Criminal Court: A commentary, Vol. I. Oxford University Press, Oxford, pp 379–426. Bourloyannis-Vrailas M-C (1995a) Safety and security of United Nations personnel in areas of internal armed conflict. Revue hellénique de droit international 48:95–108. Bourloyannis-Vrailas M-C (1995b) The Convention on the Safety of United Nations and Associated Personnel. International and Comparative Law Quarterly 44:560–590. Bourloyannis-Vrailas M-C (2000) Crimes against United Nations and associated personnel. In: McDonald K G and Swaak-Goldman O (eds) Substantive and procedural aspects of international criminal law: The experience of international and national courts, Vol. I. Kluwer Law International, The Hague, pp 333–365. Bouvier A (1995) Convention on the Safety of United Nations and Associated Personnel: Presentation and analysis. International Review of the Red Cross 309:638–666. Bowett D (1964), United Nations Forces. Sweet and Maxwell, London. Clapham A (2015) The concept of international armed conflict. In: Clapham A et al. (eds) The 1949 Geneva Conventions: A Commentary. Oxford University Press, Oxford, pp 3–26. Cottier M (2008) Article 8(2)(b)(iii). In: Triffterer O (ed) Commentary on the Rome Statute of the International Criminal Court 2nd edn. Verlag C.H. Beck oHG, Munich, pp 330–338. David E (2013) How does the involvement of a multinational peacekeeping force affect the classification of a situation? International Review of the Red Cross 891/892:660–666. Doria J (2009) Attacks on UN and regional organizations peacekeepers: Potential legal issues before the International Criminal Court. International Studies Journal 5:35–89. Engdahl O (2005) Protection of personnel in peace operations. International Peacekeeping 10:53– 69. Engdahl O (2012) Prosecution of attacks against peacekeepers in international courts and tribunals. Military Law and the Law of War Review 51:249–284. Faite A (2007) Multinational forces acting pursuant to a mandate of the United Nations: Specific issues on the applicability of international humanitarian law. International Peacekeeping 11:143–157. Faite A, Grenier J (eds) (2004) Expert meeting on multinational peace operations: Applicability of international humanitarian law and international human rights law to UN mandated forces. International Committee of the Red Cross, Geneva. Ferraro T (2013) The applicability and application of international humanitarian law to multinational forces. International Review of the Red Cross 891/892:561–612. Fleck D (2006) Securing status and protection of peacekeepers. In: Arnold R, Knoops G-J (eds) Practice and policies of modern peace support operations under international law. Transnational Publishers, Inc., New York, pp 141–156. Fleck D (2013) The legal status of personnel involved in United Nations peace operations. International Review of the Red Cross 891/892:613–636. Gadler A (2010) The protection of peacekeepers and international criminal law: Legal challenges and broader protection. German Law Journal 11:585–608. Garraway C (2010) Applicability and application of international humanitarian law to enforcement and peace enforcement operations. In: Gill T, Fleck D (eds) The handbook of the international military operations. Oxford University Press, Oxford, pp 129–133.

4 The Legal Protection of Personnel of United Nations …

107

Greenwood C (1996) Protection of peacekeepers: The legal regime. Duke Journal of Comparative and International Law 7:185–207. Greenwood C (1998) International humanitarian law and United Nations military operations. Yearbook of International Humanitarian Law 1:3–34. Henckaerts J-M, Doswald-Beck L (2005) Customary international humanitarian law, Vol. I: Rules. International Committee of the Red Cross, Geneva and Cambridge University Press, Cambridge. High-level Independent Panel on Peace Operations (2015) Report of the High-level Independent Panel on Peace Operations on uniting our strengths for peace: politics, partnership and people. UN Doc. A/70/95-S/2015/446. Institute of International Law (1971) Conditions of application of humanitarian rules of armed conflict to hostilities in which United Nations forces may be engaged. Annuaire de l’Institut de Droit International 54-II:465–470. Institute of International Law (1975) Conditions of application of rules, other than humanitarian rules, of armed conflict to hostilities in which United Nations forces may be engaged. Annuaire de l’Institut de Droit International 56:540–545. International Committee of the Red Cross (1999) Paper prepared by the International Committee of the Red Cross relating to the crimes listed in Article 8, para 2(b)(i), (ii), (iii), (iv), (v), (vi), (vii), (ix), (xi) and (xii), of the Statute of the International Criminal Court, UN Doc. PCNICC/ 1999/WGEC/INF.2/Add.1. International Committee of the Red Cross (2008) How is the term “armed conflict” defined in international humanitarian law? International Committee of the Red Cross, Geneva. International Committee of the Red Cross (2009) Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law. International Committee of the Red Cross, Geneva. International Committee of the Red Cross (2011) International humanitarian law and the challenges of contemporary armed conflicts. International Committee of the Red Cross, Geneva. International Committee of the Red Cross (2015) International humanitarian law and the challenges of contemporary armed conflicts. International Committee of the Red Cross, Geneva. International Committee of the Red Cross (2016) Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 2nd edn. International Committee of the Red Cross, Geneva. Kindred H (1995) The protection of peacekeepers. Canadian Yearbook of International Law 33:257–280. Kirsch P (1995) The Convention on the Safety of United Nations and Associated Personnel. International Peacekeeping 2:102–106. Kleffner J (2010) Human rights and international humanitarian law: General issues. In: Gill T, Fleck D (eds) The handbook of the international military operations. Oxford University Press, Oxford, pp 51–77. Kleffner J (2015) The beneficiaries of the rights stemming from common Article 3. In: Clapham A et al. (eds) The 1949 Geneva Conventions: A Commentary. Oxford University Press, Oxford, pp 433–447. Kolb R (2003) Applicability of international humanitarian law to forces under the command of an international organization. In: Faite A, Labbé Grenier J (eds) Expert meeting on multinational peace operations: Applicability of international humanitarian law and international human rights law to UN mandated forces. International Committee of the Red Cross, Geneva, pp 61– 69. Kolb R et al. (2005) L’application du droit international humanitaire et des droits de l’homme aux organisations internationales: Forces de paix et administrations civiles transitoires. Bruylant, Brussels. Lepper S (1996) The legal status of military personnel in United Nations peace operations: One delegate’s analysis. Houston Journal of International Law 18:359–464.

108

K. Okimoto

Llewellyn H (2006) The Optional Protocol to the 1994 Convention on the Safety of United Nations and Associated Personnel. International and Comparative Law Quarterly 55:718–728. Maybee L (2002) Attacks on United Nations peacekeepers: Can international law protect the blue helmets? New Zealand Armed Forces Law Review 25:25–32. Moir L (2015) The concept of non-international armed conflict. In: Clapham A et al. (eds) The 1949 Geneva Conventions: A Commentary. Oxford University Press, Oxford, pp 391–414. Pacholska M (2015) (Il)legality of killing peacekeepers: The crime of attacking peacekeepers in the jurisprudence of international criminal tribunals. Journal of International Criminal Justice 13:14–72. Palwankar U (1993) Applicability of international humanitarian law to United Nations peace-keeping forces. International Review of the Red Cross 294:227–240. Pejic J (2011) The protective scope of common article 3: More than meets the eye. International Review of the Red Cross 881:189–225. Royal Institute of International Affairs (2014) The applicability of international humanitarian law to multinational forces: Discussion summary. Royal Institute of International Affairs, London. Sandoz Y (1978) The application of humanitarian law by the armed forces of the United Nations Organization. International Review of the Red Cross 206:274–284. Sandoz Y et al. (eds) (1987) Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949. International Committee of the Red Cross, Geneva. Sassòli M (2008) International humanitarian law and peace operations, scope of application ratione materiae. In: International Institute of Humanitarian Law (ed) International humanitarian law, human rights and peace operations. International Institute of Humanitarian Law, San Remo, pp 100–106. Schindler D (1984) United Nations forces in the law of peace and war. In: Swinarski C (ed) Studies and essays on international humanitarian law and Red Cross principles in honour of Jean Pictet. Martinus Nijhoff, The Hague, pp 521–530. Seyersted F (1966) United Nations Forces in the Law of Peace and War. Sijthoff, Leiden. Sheeran S, Case S (2014) The Intervention Brigade: Legal issues for the UN in the Democratic Republic of the Congo. International Peace Institute, New York. Shraga D (1998) The United Nations as an actor bound by international humanitarian law. International Peacekeeping 5:64–81. Shraga D (2009) The Secretary-General’s bulletin on the observance by United Nations forces of international humanitarian law: A decade later. Israel Yearbook on Human Rights 39:357–377. Switzerland (1978) Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977). Swiss Federal Political Department, Bern. UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (1998) Report of the Preparatory Committee on the Establishment of an International Criminal Court. UN Doc. A/CONF.183/2/Add.1. UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court United Nations (2002) Official Records, Vol. III. UN Doc. A/CONF.183/13 (Vol. III). UN General Assembly (1993a) Sixth Committee, 16th meeting held on 21 October 1993, UN Doc. A/C.6/48/SR.16. UN General Assembly (1993b) Question of responsibility for attacks on United Nations and associated personnel and measures to ensure that those responsible for such attacks are brought to justice. UN Doc. A/RES/48/37. UN General Assembly (1994a) Establishment of an international criminal court. UN Doc. A/RES/ 49/53. UN General Assembly (1994b) Convention on the Safety of United Nations and Associated Personnel. UN Doc. A/RES/49/59. UN General Assembly (1994c) 84th plenary meeting held on 9 December 1994. UN Doc. A/49/ PV.84.

4 The Legal Protection of Personnel of United Nations …

109

UN General Assembly (2001) Sixth Committee, 4th meeting held on 9 October 2001, UN Doc. A/ C.6/56/SR.4. UN General Assembly (2013) Safety and security of humanitarian personnel and protection of United Nations personnel. UN Doc. A/RES/68/101. UN General Assembly (2016) Safety and security of humanitarian personnel and protection of United Nations personnel. UN Doc. A/RES/71/129. UN International Law Commission (1996) Draft code of crimes against the peace and security of mankind. UN Doc. A/51/10. UN Secretary-General (1992) An Agenda for Peace: Preventive diplomacy, peacemaking and peace-keeping. UN Doc. A/47/277-S/24111. UN Secretary-General (1993) Security of United Nations operations. UN Doc. A/48/349-S/26358. UN Secretary-General (1999) Secretary-General’s bulletin on the observance by United Nations forces of international humanitarian law. UN Doc. ST/SGB/1999/13. UN Secretary-General (2000a) Report of the Secretary-General on the establishment of a Special Court for Sierra Leone. UN Doc. S/2000/915. UN Secretary-General (2000b) Scope of legal protection under the Convention on the Safety of United Nations and Associated Personnel. UN Doc. A/55/637. UN Secretary-General (2004) Sixteenth report of the Secretary-General on the United Nations Organizations Mission in the Democratic Republic of the Congo, UN Doc. S/2004/1034. UN Secretary-General (2005) Eighteenth report of the Secretary-General on the United Nations Organizations Mission in the Democratic Republic of the Congo. UN Doc. S/2005/506. UN Secretary-General (2009a) Twenty-seventh report of the Secretary-General on the United Nations Organization Mission in the Democratic Republic of the Congo. UN Doc. S/2009/160. UN Secretary-General (2009b) Twenty-eighth report of the Secretary-General on the United Nations Organization Mission in the Democratic Republic of the Congo. UN Doc. S/2009/335. UN Secretary-General (2009c) Twenty-ninth report of the Secretary-General on the United Nations Organization Mission in the Democratic Republic of the Congo. UN Doc. S/2009/472. UN Secretary-General (2009d) Thirtieth report of the Secretary-General on the United Nations Organization Mission in the Democratic Republic of the Congo. UN Doc. S/2009/623. UN Secretary-General (2010a) Thirty-first report of the Secretary-General on the United Nations Organization Mission in the Democratic Republic of the Congo. UN Doc. S/2010/164. UN Secretary-General (2010b) Report of the Secretary-General on the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo. UN Doc. S/ 2010/512. UN Secretary-General (2011a) Report of the Secretary-General on the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo. UN Doc. S/ 2011/20. UN Secretary-General (2011b) Letter dated 4 April from the Secretary-General addressed to the President of the Security Council, UN Doc. S/2011/221. UN Secretary-General of the United Nations (2011c) Report of the Secretary-General on the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo. UN Doc. S/2011/298. UN Secretary-General (2011d) Twenty-eighth report of the Secretary-General on the United Nations Operation in Côte d’Ivoire. UN Doc. S/2011/387. UN Secretary-General (2011e) Report of the Secretary-General on the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo. UN Doc. S/ 2011/656. UN Secretary-General (2012) Report of the Secretary-General on the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo. UN Doc. S/2012/65. UN Secretary-General (2013a) Report of the Secretary-General on the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo. UN Doc. S/ 2013/581.

110

K. Okimoto

UN Secretary-General (2013b) Report of the Secretary-General on the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo. UN Doc. S/ 2013/757. UN Secretary-General (2014a) Report of the Secretary-General on the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo. UN Doc. S/ 2014/157. UN Secretary-General (2014b) Report of the Secretary-General on the situation in Mali. UN Doc. S/2014/943. UN Secretary-General (2015a) Report of the Secretary-General on the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo. UN Doc. S/ 2015/172. UN Secretary-General (2015b) Report of the Secretary-General on the situation in Mali. UN Doc. S/2015/219. UN Secretary-General (2015c) Report of the Secretary-General on the situation in Mali. UN Doc. S/2015/1030. UN Secretary-General (2016) Report of the Secretary-General on the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo, UN Doc. S/2016/833. UN Security Council (1993) Note by the President of the Security Council. UN Doc. S/25493. UN Security Council (1994) Final Report of the Commission of Experts established pursuant to Security Council resolution 780 (1992). UN Doc. S/1994/674, annex. UN Security Council (1999) Resolution 1270. UN Doc. S/RES/1270 (1999). UN Security Council (2008) Resolution 1856. UN Doc. S/RES/1856 (2008). UN Security Council (2011) Resolution 2000. UN Doc. S/RES/2000 (2011). UN Security Council (2013a) Resolution 2098. UN Doc. S/RES/2098 (2013). UN Security Council (2013b) Statement by the President of the Security Council. UN Doc. S/ PRST/2013/17. UN Security Council (2014a) Resolution 2147. UN Doc. S/RES/2147 (2014). UN Security Council (2014b) Resolution 2149. UN Doc. S/RES/2149 (2014). UN Security Council (2014c) Resolution 2175. UN Doc. S/RES/2175 (2014). UN Security Council (2015a) Resolution 2211. UN Doc. S/RES/2211 (2015). UN Security Council (2015b) Resolution 2217. UN Doc. S/RES/2217 (2015). UN Security Council (2015c) Resolution 2245. UN Doc. S/RES/2245 (2015). UN Security Council (2015d) Statement by the President of the Security Council. UN Doc. S/ PRST/2014/5. UN Security Council (2016a) Resolution 2277. UN Doc. S/RES/2277 (2016). UN Security Council (2016b) Resolution 2295. UN Doc. S/RES/2295 (2016). UN Security Council (2016c) Resolution 2304. UN Doc. S/RES/2304 (2016). UN Security Council (2017) Resolution 2348. UN Doc. S/RES/2348 (2017). United Nations Transitional Administration in East Timor (2000) Regulation No. 2000/15 on the establishment of panels with exclusive jurisdiction over serious criminal offences. UN Doc. UNTAET/REG/2000/15. Vité S (2009) Typology of armed conflicts in international humanitarian law: Legal concepts and actual situations. International Review of the Red Cross 873:69–94. Whittle D (2015) Peacekeeping in conflict: The Intervention Brigade, MONUSCO, and the application of international humanitarian law to United Nations forces. Georgetown Journal of International law 46:837–875. Working Group of the Sixth Committee of the General Assembly (1994) Report of the Working Group, UN Doc. A/C.6/49/L.4. Working Group of the Sixth Committee of the General Assembly on the Scope of Legal Protection under the Convention on the Safety of United Nations and Associated Personnel (2003) Report of the Working Group on the Scope of Legal Protection under the Convention on the Safety of United Nations and Associated Personnel, UN Doc. A/C.6/58/L.16.

4 The Legal Protection of Personnel of United Nations …

111

Working Group of the Sixth Committee of the General Assembly on the Scope of Legal Protection under the Convention on the Safety of United Nations and Associated Personnel (2004) Report of the Working Group on the Scope of Legal Protection under the Convention on the Safety of United Nations and Associated Personnel, UN Doc. A/C.6/59/L.9. Zwanenburg M (2005) Accountability of peace support operations. Martinus Nijhoff, Leiden.

Keiichiro Okimoto is a Legal Officer, Office of the Legal Counsel, Office of Legal Affairs, United Nations. The views expressed in this chapter are those of the author and do not necessarily reflect the views of the United Nations.

Part II

The Regulation of NSAs Involved in Armed Conflict Beyond IHL

Chapter 5

Chemical Weapons and Non-State Actors Yasmin Naqvi and Olufemi Elias

Contents 5.1 5.2 5.3 5.4

Introduction........................................................................................................................ Historical Overview of the Ban on the Use of Chemical Weapons ................................ Chemical Weapons Convention and the Practice of the OPCW ..................................... Other International Law Sources ...................................................................................... 5.4.1 UN Security Council Resolutions .......................................................................... 5.4.2 UN General Assembly Resolutions ....................................................................... 5.4.3 International Counter-Terrorism Treaties ............................................................... 5.5 Accountability Measures ................................................................................................... 5.5.1 The UN Secretary-General’s Mechanism .............................................................. 5.5.2 The OPCW-UN Joint Investigative Mechanism.................................................... 5.5.3 Options to Prosecute Under the Rome Statute of the International Criminal Court ....................................................................................................................... 5.5.4 National Courts....................................................................................................... 5.6 Conclusion ......................................................................................................................... References ..................................................................................................................................

116 117 120 126 127 132 134 135 135 138 140 141 144 145

Abstract In multiple international fora, the international community has unanimously condemned the use of chemical weapons by anyone in any circumstances as a violation of international law. However, the legal basis for these strong statements is not immediately apparent. This chapter undertakes a review of applicable

The views expressed are those of the authors alone and are not intended to reflect the views of the International Residual Mechanism for Criminal Tribunals or the United Nations in general. Y. Naqvi (&) UN International Residual Mechanism for Criminal Tribunals, The Hague, The Netherlands e-mail: [email protected] O. Elias Formerly Organisation for the Prohibition of Chemical Weapons, The Hague, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 E. Heffes et al. (eds.), International Humanitarian Law and Non-State Actors, https://doi.org/10.1007/978-94-6265-339-9_5

115

116

Y. Naqvi and O. Elias

international legal instruments and sources, including international humanitarian law, the Chemical Weapons Convention and resolutions of the United Nations Security Council and General Assembly, to examine the legal veracity of the statement. The review of these legal instruments and the practice of the international community would appear to lead to a conclusion that any use of chemical weapons by a non-State actor is prohibited as a matter of customary international law.










Keywords Chemical Weapons Non-State Actors Terrorism International Customary Law Practice of International Organisations Organisation for the Prohibition of Chemical Weapons Accountability




5.1







Introduction

The international community is unanimous in its condemnation of the use of chemical weapons ‘anywhere, at any time, by anyone, under any circumstances’.1 In multiple international fora, States have repeatedly emphasised that any use of chemical weapons by anyone would violate international law, and expressed the conviction that those responsible should be held accountable. However, these strong statements belie a complex legal picture. The reference to ‘anyone’ is clearly meant to cover both State and non-State actors.2 But what international law would the use of chemical weapons by non-State actors ‘anywhere, at any time’ violate? This chapter undertakes a review of applicable international legal instruments and sources in order to try to answer that question. The analysis is divided in four parts. The first part reviews the legal history of the ban on the use of chemical weapons, with a focus on how non-State actors are bound—if at all—by such rules. The second part examines the Chemical Weapons Convention (CWC)—the principal treaty relevant to the matter—and analyses how non-State actors are dealt with in the context of that regime and by its implementing organisation, the Organisation for the Prohibition of Chemical Weapons (OPCW). The third part reviews other international legal instruments that prohibit non-State actors from using chemical weapons, focusing on the resolutions of the United Nations (UN) Security Council and General Assembly. The final part looks at the measures available to hold non-State actors to account for chemical weapons use, including the UN Secretary-General’s mechanism, the OPCW-UN Joint Investigative Mechanism, and the options to prosecute non-State actors for 1

OPCW 2015a, preambular para 1, operative paras 2–4. See also, infra, the same statement repeated by the OPCW Executive Council and expressed by the United Nations Security Council and General Assembly in practice referred to at Sections 3 and 4. 2 While there is no commonly accepted definition of the term ‘non-State actor’, the definition articulated and used by the UN Security Council in UN Security Council Resolution 1540 (2004) as ‘individual or entity, not acting under the lawful authority of any State’ serves as a useful definition of ‘non-State actor’ for the purpose of this chapter.

5 Chemical Weapons and Non-State Actors

117

chemical weapons use under the Rome Statute of the International Criminal Court (ICC) and at the national level. The review of these legal instruments and the practice of the international community would appear to lead to a conclusion that any use of chemical weapons by a non-State actor is prohibited as a matter of customary international law.

5.2

Historical Overview of the Ban on the Use of Chemical Weapons

Chemical weapons3 have long been banned as a means of warfare, but their use by non-State actors has not historically been regulated by treaty law. The first international agreement which could be said to have banned a chemical weapon dates back to 1675 when France and the Holy Roman Empire (Germany) signed the Strasbourg Agreement banning the use of poisoned bullets. The Brussels Declaration of 1874, which was not, in the end, ratified, prohibited the use of poison, poisoned weapons, and the employment of arms, projectiles and material causing unnecessary suffering during international armed conflicts (IACs) (i.e. between States) and occupation. Similarly, the Hague Declaration Concerning Asphyxiating Gases of 1899 required Contracting Powers (States) ‘to abstain from the use of projectiles the sole purpose of which is the diffusion of asphyxiating or deleterious gases’. The Hague Regulation of 1907 prohibited in Article 23(1)(e) the use of arms, projectiles or material calculated to cause unnecessary suffering. In 1925, following the large-scale and widespread use of chemical weapons in World War I, the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (the Geneva Protocol) was adopted. Like its predecessors, however, the Geneva Protocol was limited in application to IACs, and non-State actors were not directly covered by the agreement.4 The use of chemical weapons was not subject to any direct prohibition in the Geneva Conventions of 1949, although their use by non-State actors against persons taking no active part in hostilities could arguably amount to a violation of common Article 3, applicable in non-international armed conflicts (NIACs), where 3 Article II(1) of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, opened for signature 3 September 1992, 1974 UNTS 45, entered into force 29 April 1997 (CWC) provides that: ‘“Chemical Weapons” means the following, together or separately: (a) Toxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes; (b) Munitions and devices, specifically designed to cause death or other harm through the toxic properties of those toxic chemicals specified in subparagraph (a), which would be released as a result of the employment of such munitions and devices; (c) Any equipment specifically designed for use directly in connection with the employment of munitions and devices specified in subparagraph (b)’. 4 The Geneva Protocol suffered from other limitations, such as preserving the right of Contracting Parties (States) to use chemical weapons in reprisal. For a discussion, see Asada 2015, pp 156–165.

118

Y. Naqvi and O. Elias

it constitutes a prohibited act.5 Additional Protocol I to the Geneva Conventions of 1977 did not specifically ban the use of chemical weapons either. It does, however, prohibit the use of weapons causing superfluous injury and unnecessary suffering.6 There is little doubt that such a prohibition would apply to the use of chemical weapons. The commentary of the International Committee of the Red Cross (ICRC) attests to the fact that it was these types of weapons the drafters had in mind when affirming this principle.7 It is notable that Additional Protocol I applies not only to armed conflicts between States but also to those conflicts in which peoples are fighting against colonial domination, alien occupation or racist regimes in the exercise of self-determination.8 Non-State actors involved in those struggles—at least in those States which have ratified the Protocol—would therefore be directly bound by the prohibition of using weapons causing superfluous injury and unnecessary suffering, which would cover the use of chemical weapons. Additional Protocol II, which applies to certain high intensity categories of NIACs, contains no prohibitions on the use of certain weapons. The 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (BWC) covers chemical weapons to the extent that toxin weapons are included.9 While the Convention applies ‘in any circumstances’, the use of such weapons is not explicitly prohibited.10 Moreover, the Convention is binding on 5 Article 3 common to the Geneva Conventions of 1949 prohibits each party to an armed conflict not of an international character (thereby including non-State parties to armed conflicts) from committing violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture. 6 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 3, entered into force 7 December 1978 (Additional Protocol I), Article 35(2). 7 Sandoz et al. 1987, para 1419. See also para 1420: ‘The weapons which are prohibited under the provisions of the Hague Law are, a fortiori, prohibited under the paragraph of Article 35 with which we are concerned here’. 8 Additional Protocol I, above n. 6, Article 1(4) and Article 96(3). The General Court of the European Union recently gave legal standing to a non-State group that had made a declaration pursuant to Article 96(3) – the Front Polisario – in a case related to trade agreements with the European Union. See General Court of the European Union, Front populaire pour la libération de la Saguia-el-Hamra et du Rio de Oro (Front Polisario) v Council of the European Union, Judgment of the General Court (Eighth Chamber), 10 December 2015, Case T-512/12. 9 A toxin may be characterized as a toxic chemical since the definition of toxic chemical is any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. CWC, above n. 3, Article II(2). 10 The Convention prohibits States Parties from developing, producing, stockpiling or otherwise acquiring or retaining: 1. Microbial or other biological agents or toxins, whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes; and 2. Weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict. Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, opened for signature 10 April 1972, 1015 UNTS 163, entered into force 26 March 1975 (BWC), Article I.

5 Chemical Weapons and Non-State Actors

119

States Parties only, although it does require them to take ‘any necessary measures to prohibit and prevent the development, production, stockpiling, acquisition or retention of the agents, toxins, weapons, equipment and means of delivery specified in Article I of the Convention, within the territory of such State, under its jurisdiction or under its control anywhere’.11 A similar approach is taken in the CWC adopted in 1993, and examined in the next part of this chapter. Historically, therefore, international treaties—with the limited exception of Additional Protocol I—did not prohibit non-State actors from using chemical weapons. Despite this, certain courts12 as well as the ICRC have determined that the use of chemical weapons is prohibited in both IACs and NIACs as a matter of customary international law.13 The Rome Statute of the ICC also supports this view. While it does not include the use of chemical weapons explicitly as crime within its jurisdiction,14 there are provisions that could potentially be used to prosecute a person for the use of chemical weapons. Under Article 8(2)(b)(xvii)– (xviii) and Article 8(2)(e)(xiii)–(xiv),15 it is a war crime to employ ‘poison or poisoned weapons’ and ‘asphyxiating, poisonous or other gases’ in IACs and NIACs, respectively.16 This would cover the use of most chemical weapons during armed conflict.17

11

BWC, above n. 10, Article IV. See ICTY, Prosecutor v Tadic Case, Jurisdiction, Appeals, 2 October 1995, Case No. IT-94-1 (Tadic), para 124 (noting that ‘there undisputedly emerged a general consensus in the international community on the principle that the use of [chemical] weapons is also prohibited in internal armed conflict’); Colombia, Constitutional Court, Constitutional Case, Judgment, 18 May 1995, Case No. C-255/95, para 23 (finding that although none of the treaty rules expressly applicable to internal armed conflicts prohibits indiscriminate attacks or the use of certain weapons, the Taormina Declaration (Declaration on the Rules of international humanitarian law governing the conduct of hostilities in non-international armed conflicts, San Remo, 7 April 1990) considers that the ban, established partly by customary law and partly by treaty law, on the use of chemical weapons apply to NIACs). 13 ICRC n.d. Customary IHL Database, Rule 74. 14 A draft that contained reference to bacteriological and chemical weapons was removed since it formed part of a broad general provision capable of covering nuclear weapons, which was rejected by nuclear possessor States, and the removal of chemical weapons was meant to appease the non-nuclear States. See UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court 1998, paras 17, 18. 15 The amendment has been part of the Statute since 26 September 2012. As per Article 8 of the Statute, it will come into force only for those States Parties which have ratified it, one year after doing so. At the time of writing, 34 States Parties had ratified the amendment. 16 Some commentators have suggested that considering the use of chemical weapons to fall under the definition of ‘poison or poisoned weapons’ would leave nuclear weapons within this definition as well, which was not the intention of the drafters. Schabas 2013. 17 While Article 8(2)(b)(xx) of the Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3, entered into force 1 July 2002 (Rome Statute), provides the ICC with jurisdiction over the war crime of using ‘weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict,’ this provision 12

120

Y. Naqvi and O. Elias

Assuming the ICRC’s position is correct and that the Rome Statute’s war crimes provisions covering chemical weapons are reflective of customary international law, it still leaves the question of what international law is violated by the use of chemical weapons by non-State actors at any time, in particular outside of the context of an armed conflict.

5.3

Chemical Weapons Convention and the Practice of the OPCW

The most comprehensive prohibition on the use of chemical weapons is found in Article I(1)(b) of the CWC. The object and purpose of the CWC, as stated in its preamble, is to ‘exclude completely the possibility of the use of chemical weapons’. The CWC prohibits States Parties from using chemical weapons in all circumstances, as well as developing, producing, otherwise acquiring, stockpiling and retaining or transferring (directly or indirectly) to anyone, or assisting, encouraging or inducing, in any way, anyone to engage in any of those activities.18 The CWC does not directly bind non-State actors to the prohibition on the use of chemical weapons, nor does it establish the use of chemical weapons as an international crime.19 Rather, States Parties are required under Article VII of the CWC to enact domestic legislation in order to prohibit ‘natural and legal persons’ on their territory, or any place under their jurisdiction, from undertaking the prohibited activities. States Parties are also required to put in place within their respective legal systems extra-territorial criminal jurisdiction to prosecute their nationals who commit such prohibited acts anywhere. While the bulk of the CWC’s provisions are concerned with dismantling large State-owned chemical weapons programmes, certain articles of the CWC intimate that non-State actors are equally prohibited from using chemical weapons.20 For instance, States Parties are obliged not to assist, encourage or induce, in any way, ‘anyone’ to engage in any activity prohibited to a State Party under the CWC.21 States Parties must also take ‘the necessary measures to ensure that toxic chemicals and their precursors are only developed, produced, otherwise acquired, retained, transferred, or used within its territory or in any other place under its jurisdiction or applies only in IACs and is enforceable once an annex listing such weapons is agreed upon by States Parties, and no agreement has yet been reached. 18 CWC, above n. 3, Article I(1)(a) and (b). 19 In this way, the CWC may be contrasted to treaties such as the Genocide Convention which explicitly states that ‘genocide, whether committed in time of peace or in time of war, is a crime under international law’. Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277, entered into force 12 January 1951 (Genocide Convention), Article I. 20 See OPCW 2015e. 21 CWC, above n. 3, Article I(1)(d).

5 Chemical Weapons and Non-State Actors

121

control for purposes not prohibited under this Convention’.22 This would entail putting in place the measures required to ensure that non-State actors are not able to acquire or use chemical weapons. Further, States Parties have the right to request assistance and protection from the use of chemical weapons, regardless of the perpetrator.23 Such requests may trigger an investigation into alleged use by the Technical Secretariat’s experts24 or deployment of the OPCW’s Rapid Response Assistance Mission.25 OPCW experts may also be called upon to assist the UN in an investigation of chemical weapons use in a territory not controlled by a State, and therefore possibly in the hands of a non-State actor.26 It is well accepted that a prohibition of a certain conduct in a treaty may give rise to international criminal responsibility under customary international law.27 Therefore, the prohibition of the use of chemical weapons under the CWC may, in theory, attract individual criminal responsibility under customary international law. The question is whether there is evidence of sufficient State practice and opinio juris to establish such a proposition. In this regard, the evidence of State practice criminalising the use of chemical weapons pursuant to obligations under Article VII of the CWC is significant. There is near-universal adoption of the CWC,28 which, as noted above, obligates domestic criminalisation. As of 31 July 2016, 145 States Parties (76% of OPCW States Parties) had prohibitions in place; 143 States Parties (74% of OPCW States Parties) had specific penalties (i.e. suggested sentencing ranges); and 127 States Parties (66% of OPCW States Parties) had provisions providing for extraterritorial jurisdiction.29 This State practice—in and of itself—does not necessarily point to the prohibition of the use of chemical weapons as an international crime. This practice in terms of implementing legislation may be viewed as evidence of the criminalisation of the use of chemical weapons as a transnational treaty-based crime, similar

22

CWC, above n. 3, Article VI(2). CWC, above n. 3, Article X(8)(a). While Article X(8)(c) would seem to limit the right of States Parties to request assistance and protection from threats of use by States, the OPCW policy-making organs have suggested that threats of use of chemical weapons from non-State actors would also trigger this right. See OPCW 2017a, para 12. 24 CWC, above n. 3, Article X(9) and (10). 25 The Rapid Response Assistance Mission (RRAM), established in 2016, has the mandate to provide emergency measures of assistance to requesting States Parties that are victims of chemical weapons attacks by non-State actors. OPCW 2016c. 26 CWC, above n. 3, Part XI, para 27 of the Verification Annex. 27 ICTY, Prosecutor v Galić Case, Judgment, Appeals, 30 November 2006, Case No. IT-98-29-A, para 83. See also Ambos 2009, p 226 ‘… a treaty-based crime may become a true international crime by way of customary international law’. 28 OPCW 2015d. There are only four non-party States: Egypt, Israel (a signatory), North Korea and South Sudan (which has indicated an intention to accede to the CWC). 29 OPCW 2016d, paras 19–21. 23

122

Y. Naqvi and O. Elias

to those crimes contained in counter-terrorism suppression conventions.30 Since an international crime has been said to emanate from an international treaty or from customary international law without requiring intermediate provision of domestic law,31 it could be argued that this State practice is not relevant evidence that the use of chemical weapons is an international crime. However, (i) the largely uniform and widespread State practice of criminalising the use of chemical weapons at the national level coupled with (ii) other State practice and opinio juris condemning the use of chemical weapons by non-State actors as a violation of international law, together provide significant support for the proposition that the use of chemical weapons by non-State actors in any circumstances would violate customary international law. It may be recalled that the International Law Commission in its draft conclusions on the identification of customary international law determined that ‘[i]n certain cases, the practice of international organizations also contributes to the formation, or expression, of rules of customary international law’.32 Such practice may be particularly determinative when it is expressed by a body with universal membership. In this respect, the practice of the OPCW policy-making organs— which are composed of all States bar four (since only Egypt, Israel, North Korea and South Sudan are not States Parties to the CWC)—is a salient indicator. At the Third Review Conference in 2013, the States Parties to the CWC ‘underlined that the use of chemical weapons by anyone in any circumstances would be reprehensible and completely contrary to the legal norms and standards of the international community’.33 This sentiment was affirmed and strengthened in the Ieper Declaration adopted on 21 April 2015, when the States Parties to the CWC unanimously determined that ‘any use of chemical weapons anywhere, at any time, by anyone, under any circumstances is unacceptable and would violate the legal norms and standards of the international community’, and expressed the ‘strong conviction that those individuals responsible for the use of chemical weapons should be held accountable’.34 The references to the ‘legal norms and standards of the international community’ must logically refer to customary international law 30 Transnational crime has been defined as ‘offences whose inception, prevention and/or direct or indirect effects involved more than one country’. Ninth UN Congress on the Prevention of Crime and the Treatment of Offenders 1995. 31 Werle 2009, p 29. See also Ambos 2009, p 227, arguing that in order to be a ‘true international crime’ a breach ‘must entail individual criminal responsibility in its own right, that it, independently of any criminalization in domestic criminal law’. 32 UN International Law Commission, Identification of customary international law 2016, Draft conclusion 4[5], para 2. See also UN International Law Commission 2015a, Draft conclusion 12 [13], para 2. See further, STL, In the Matter of El Sayed, Decision on Appeal of Pre-Trial Judge’s Order Regarding Jurisdiction and Standing, 10 November 2010, para 47 (finding that, among other things, the lack of objection by States to the practice of international criminal tribunals with respect to the exercise of their inherent powers or jurisdiction contributed to the formation of customary international law on the subject). 33 OPCW 2013b (emphasis added). 34 OPCW 2015c (emphasis added).

5 Chemical Weapons and Non-State Actors

123

since—as discussed above—there is no treaty or other international legal instruments that establish such a norm. This pronouncement has been repeated in a number of operative decisions of the Executive Council, the executive organ of the OPCW.35 In 2013, in response to the chemical weapons attacks in Syria, the Executive Council recalled the statement of its Chairman underlining that ‘the use of chemical weapons by anyone under any circumstances would be reprehensible and completely contrary to the legal norms and standards of the international community’ and condemned ‘in the strongest possible terms the use of chemical weapons’.36 In 2015, following the reports of the OPCW Fact-Finding Mission, which was set up to investigate alleged chemical weapons attacks in Syria, the Executive Council itself underlined ‘that the use of any chemical weapons by anyone under any circumstances would be reprehensible and completely contrary to the legal norms and standards of the international community’, reaffirmed its condemnation ‘in the strongest possible terms, of the use of chemical weapons by anyone under any circumstances’, emphasised ‘that any use of chemical weapons anywhere, at any time, by anyone, under any circumstances is unacceptable and would violate international law’,37 and expressed ‘its strong conviction that those individuals responsible for the use of chemical weapons should be held accountable’.38 The Executive Council also endorsed the continuation of the Fact-Finding Mission. These statements were reaffirmed in an Executive Council decision of November 2015 which considered the further reports of the Fact-Finding Mission, and again endorsed its continuation.39 A year later, the Executive Council recalled the statements made in the Ieper Declaration, and condemned ‘in the strongest possible terms the use of chemical weapons … in contravention of well-established international standards and norms against such use’, called on ‘all parties’ to immediately desist from such use, and expressed ‘its strong conviction that every actor involved in these chemical weapons attacks should be held accountable’.40 Regional statements and national statements by States Parties at meetings of the policy-making organs have reiterated

35 The Executive Council is responsible for promoting the effective implementation of, and compliance with, the Convention. It comprises 43 States Parties on a rotational basis. CWC, above n. 3, Article VII, paras 30 and 31. 36 OPCW 2013a, preambular para 1. This statement was echoed by the UN Security Council in Resolution 2118, adopted the same day, which endorsed the OPCW Executive Council decision. UN Security Council 2013a, preambular para 8. 37 It is notable that in the operative paragraph of this decision, the Executive Council used the term ‘international law’ rather than the more ambiguous ‘legal norms and standards of the international community’. This could be taken to indicate a desire of the part of States Parties to underline the view that the use of chemical weapons by anyone is a violation of international law, not merely those legal standards shared among the international community. 38 OPCW 2015b, preambular para 1, operative paras 2–4 (emphasis added). 39 OPCW 2017a, preambular para 1, operative paras 3–5. 40 OPCW 2016b, paras 3–4 (emphasis added).

124

Y. Naqvi and O. Elias

these sentiments.41 Sixty-one States Parties made a joint statement at the 2016 OPCW Conference of States Parties that expressed the ‘strong conviction that every actor involved in these chemical weapons attacks must be held accountable’.42 In 2017, one State Party unequivocally declared that the ‘use of chemical weapons by anyone, anywhere at any time constitutes an international crime’.43 What is notable about the language used in these decisions of the OPCW policy-making organs and by States Parties is that the prohibition of chemical weapons is said to apply to ‘anyone’, meaning that individuals (State agents and non-State actors) are directly bound as a matter of international law, and ‘at any time’ in ‘any circumstances’, affirming that the prohibition applies in times of armed conflict and in peace. As noted above, the reference to ‘international standards and norms’ logically refers to customary international law since individuals are not directly bound by the CWC or by other international legal instruments such as UN Security Council resolutions (discussed below). Furthermore, the condemnation of the use of chemical weapons ‘in the strongest possible terms’ is reminiscent of the language of international criminal law, since it is only those most serious violations of the international law that attract international criminal responsibility under customary international law.44 The calls for accountability suggest the need for prosecution and punishment, as it would be required in response to an international crime. Against this background, the implementation of legislation as required by Article VII may be viewed as a tool to ensure that mechanisms are in place to prosecute perpetrators of an international crime, as opposed to an indicator that the use of chemical weapons is only a domestic crime by reason of a treaty-based obligation. After all, even well-established international crimes, such as genocide, may require domestic legislation to be enforced at the national level.45 Finally, it is significant that OPCW States Parties have used this See e.g., OPCW 2016f: ‘The EU reiterates its strong belief that the use of chemical weapons by anyone, including non-State actors, anywhere and under any circumstances is abhorrent and must be rigorously condemned and that those responsible for such acts must be held accountable. The use of chemical weapons constitutes a violation of international law, a war crime, and a crime against humanity’. Similar statements were made by Finland, Germany, India, Ireland, Singapore, and Switzerland. 42 OPCW 2016e (emphasis added). 43 OPCW 2017b (emphasis added). See also OPCW 2016g: ‘It is of utmost importance that the perpetrators of these grave violations of international law, which can constitute war crimes and crimes against humanity, be held accountable’. 44 For example, the jurisprudence of the International Criminal Tribunal for the former Yugoslavia has consistently held that for an offence to fall under the scope of Article 3 ICTY Statute (other serious violations of international humanitarian law), the violation, inter alia, must be serious, that is to say that it must constitute a breach of a rule protecting important values and the breach must involve grave consequences for the victim. Tadic, above n. 12, para 94. See also Rome Statute, above n. 17, preambular para 4 (affirming that ‘the most serious crimes of concern to the international community as a whole must not go unpunished”) and Article 1 (stating that the ICC shall have jurisdiction over “the most serious crimes of international concern’). 45 See e.g. Federal Court of Australia, Nulyarimma and others v. Thompson, Full Court, 1 September 1999, 39 ILM 20 (2000) (ruling that in the absence of enabling domestic legislation, no 41

5 Chemical Weapons and Non-State Actors

125

language in the context of decisions endorsing the work of the Fact-Finding Mission, a mechanism linked to enforcement, both at the State and the international criminal responsibility levels.46 Other relevant practice of the OPCW includes the Technical Secretariat’s assistance provided to Iraq in its national investigation of chemical weapons attacks by ISIL or other non-State armed groups.47 This led to confirmation of the use of sulfur mustard in an attack in the Kurdistan Region of Iraq in early 2016. Furthermore, the threat of Libya’s remaining Schedule 248 chemical weapons falling into the hands of ISIL led to an international effort coordinated by the OPCW in 2016 to remove the Libya’s remaining stocks for destruction on the territory of another State Party. As with the OPCW’s operations in Syria, the UN Security Council endorsed the Executive Council’s decision in this regard and— having determined that ‘the potential for acquisition by non-State actors of chemical weapons in Libya represents a threat to international peace and security’—authorized the transfer of chemical weapons from Libya across international borders for the purpose of destruction.49 In addition to this practice, the OPCW has directly addressed the threat of non-State actors through the work of its Open-Ended Working Group on Terrorism, established by the Executive Council in 2001, and its Sub-Working Group on Non-State Actors, established in 2015. These bodies have the mandate to recommend to the Executive Council concrete measures to further contribute to global counter-terrorist efforts with regard to chemical weapons. In 2016, the work of the Open-Ended Working Group on Terrorism and the Sub-Working Group led to a set of recommendations, which gave the impetus for the adoption in October 2017 of an Executive Council decision addressing the threat posed by the use of chemical weapons by non-State actors.50 The decision emphasised that ‘any use of chemical person may be tried for genocide in Australia); En la cause Fulgence Niyonteze, Tribunal militaire de division 2, Lausanne, 30 April 1999; En la cause Fulgence Niyonteze, Tribunal militaire d’appel 1 A, Geneva, 26 May 2000; Prosecutor v. Dulgence Niyonteze, Tribunal militaire de cassation, Yverdon-les-Bains, 27 April 2001 (trying a Rwandan citizen for war crimes, rather than genocide, in Swiss courts based on applicable national law). See also R. v. Jones, [2006] UKHL 16 (holding that because aggression had not been criminalised pursuant to domestic legislation, individuals could not claim that they acted to prevent a crime (aggression) when they illegally entered military bases). 46 As further examined below, the UN Security Council in 2015 established the JIM, which has the mandate to identify the ‘individuals, entities, groups, or governments who were perpetrators, organizers, sponsors or otherwise involved’ in those incidents in which the OPCW Fact-Finding Mission has determined that chemical weapons were used. UN Security Council 2015b, para 5. The mandate of the OPCW-UN Joint Investigative Mechanism was extended for a further year in UN Security Council 2016d. 47 OPCW 2016 Director-General expresses concern over alleged recent chemical attacks in Iraq, opcw.org, 23 March 2016. https://www.opcw.org/news/article/director-general-expresses-concernover-alleged-recent-chemical-attacks-in-iraq/. Accessed 21 May 2017. 48 OPCW n.d. 49 UN Security Council 2016c, paras 1 and 3, endorsing OPCW 2016a. 50 OPCW 2017a.

126

Y. Naqvi and O. Elias

weapons anywhere, at any time, by anyone, under any circumstances, is unacceptable and contravenes international standards and norms against such use’ and reaffirmed ‘[the Executive Council’s] strong conviction that those individuals responsible for the use of chemical weapons must be held accountable’.51 It also encouraged, inter alia, States Parties to examine their national laws to ensure that they contain appropriate offences which could be used to prosecute direct and indirect perpetrators, and to use existing mutual legal assistance arrangements.52 Although it took some time for this decision to be adopted, this delay reflected a lack of consensus on a Russian proposal to include preambular language that would refer to the Russian Federation’s initiative at the Conference of Disarmament for a new convention dealing with non-State actors and chemical and biological weapons.53 However, having the draft decision on the agenda of several Executive Council meetings served to prompt reactions from States, which may count as practice or attest to their legal opinions.54 In this regard, States Parties have been unanimous in their support of the notion that the use of chemical weapons by non-State actors violates international law and that non-State perpetrators must be held accountable. As guardians of the Chemical Weapons Convention, with its objective of eliminating the possibility of the use of chemical weapons, the OPCW policy-making organs are singularly well placed to contribute to a clear identification or development of a customary international law prohibition of the use of chemical weapons by non-State actors. For this reason, the ongoing work of the Open-Ended Working Group on Terrorism and its Sub-Working Group, as well as decisions of the policy-making organs in response to the reports of the Iraqi investigation (assisted by the Technical Secretariat), the Fact-Finding Mission and —in particular—the Joint Investigative Mechanism, may provide significant insights into this subject.

5.4

Other International Law Sources

In addition to international humanitarian law (IHL) and the CWC, discussed above, the other pertinent international law sources relating to the prohibition of the use of chemical weapons by non-State actors are the resolutions of the UN Security Council and General Assembly.

51 52 53 54

Ibid., paras 2–3. Ibid., paras 7–8. For a discussion on this initiative, see Meier and Trapp 2016. See UN International Law Commission 2015b, para 75.

5 Chemical Weapons and Non-State Actors

5.4.1

127

UN Security Council Resolutions

UN Security Council resolutions arguably provide evidence of opinio juris and State practice55 relevant to the prohibition of the use of chemical weapons by non-State actors. Although the UN Security Council is made up of only 15 States, given its role as the principal organ of the UN responsible for the maintenance of international peace and security, as well as its law-making power under Chapter VII of the UN Charter, and the combination of Articles 103 and 25, its resolutions may in certain circumstances contribute to the identification or development of customary international law.56 The UN Security Council itself has implicitly acknowledged that it may contribute to, or help identify, customary international law.57 In addition, judges of the International Court of Justice and commentators have highlighted the special importance of the views of the permanent five members of the UN Security Council in determining the legality of the use of weapons of mass destruction.58 With regard to the issue of chemical weapons, UN Security Council resolutions have been consistent with other practice, in particular, that of the UN General Assembly, as well as the OPCW’s policy-making organs. This convergence of practice lends further weight to the legal status of its statements on the international legal prohibition of the use of chemical weapons by non-State actors in all circumstances. A number of UN Security Council resolutions also condemned the use of chemical weapons in the conflict between Iraq and Iran in the 1980s.59 While these resolutions concerned an IAC, the UN Security Council’s condemnation of the use of chemical weapons went beyond that context. In Resolution 620 (1988), the UN

55

ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, at 312 (Dissenting Opinion of Vice-President Schwebel, listing ‘action of the United Nations Security Council’ under ‘State practice’). 56 Orakhelashvili 2007, p 145. It should be noted, however, that the practice of the UN Security Council did not feature in the first report of the Special Rapporteur Sir Michael Wood in the International Law Commission’s current study on the formation of custom. UN International Law Commission 2013. 57 See e.g. UN Security Council 2013b, para 13, which underscored ‘that this resolution shall not be considered as establishing customary international law’. 58 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, at 226, 312 and 319 (Dissenting Opinion of Vice-President Schwebel). See Buergenthal and Murphy 2013, p 28. 59 UN Security Council 1988a; UN Security Council 1988b; UN Security Council 1987; UN Security Council 1988c.

128

Y. Naqvi and O. Elias

Security Council endorsed the UN Secretary-General’s mechanism to investigate the possible use of chemical weapons that may constitute ‘a violation of … relevant rules of customary international law’, and decided to consider immediately measures under the UN Charter should there be any future use of chemical weapons ‘in violation of international law, wherever and by whomever committed’.60 The threat posed by non-State actors with respect to chemical weapons began to be addressed more directly by the UN Security Council following the terrorist attacks of 11 September 2001. Resolution 1373 (2001) required States to intensify and accelerate the exchange of operational information regarding the threat posed by the possession of weapons of mass destruction by terrorist groups, and described the close connection between international terrorism and the illegal movement of chemical materials as a ‘serious challenge and threat to international security’, emphasizing the need to enhance coordination of efforts on national, sub-regional, regional and international levels.61 Resolution 1540 (2004) went further and dealt specifically with the threat posed by non-State actors and weapons of mass destruction, including chemical weapons.62 It established binding obligations on all UN Member States to refrain from providing support to non-State actors in the proliferation of chemical weapons. It also required States to ‘adopt and enforce’ appropriate effective laws which prohibit ‘any non-State actor’ from manufacturing, acquiring, possessing, developing, transporting, transferring or using chemical weapons and their means of delivery, in particular for terrorist purposes, as well as attempts to engage in any of these activities, participate in them as an accomplice, assist or finance them.63 The obligation not merely to adopt laws prohibiting the use of chemical weapons by non-State actors but also to enforce them is suggestive of a duty to investigate, prosecute and punish such activities.64 In addition, this Resolution does not specify any particular jurisdictional basis to trigger the obligation to enforce such laws, leaving open the possibility that States could prosecute a non-State actor for the use of chemical weapons regardless of the nationality of the perpetrator or where the act was carried out, i.e. on the basis of universality. This type of obligation may be argued to be similar to those found in

60

UN Security Council 1988c, operative paras 2 and 4, respectively. UN Security Council Resolution 2001. 62 UN Security Council Resolution 2004. The other weapons of mass destruction dealt with in the resolution are nuclear and biological weapons. 63 Ibid., para 2. 64 As noted earlier, the obligation in Article VII of the CWC is limited by its text to adopting the necessary measures to prohibit the use of chemical weapons. 61

5 Chemical Weapons and Non-State Actors

129

treaties establishing international crimes, such as the Genocide Convention,65 the Geneva Conventions,66 and the Convention against Torture.67 As Resolution 1540 arguably requires all UN Member States to investigate and prosecute non-State actors suspected of using chemical weapons, this lends further support to a customary international prohibition of the use of chemical weapons by anyone in any circumstances. Since the adoption of the resolution, many governments have indeed adopted or amended domestic laws in line with the obligations set out by this provision.68 The Comprehensive Review carried out by the Resolution 1540 Committee69 in 2016 indicated that 175 States had in place legislation that would prohibit the use of chemical weapons, while 159 had enforcement measures in place.70 In response to the Comprehensive Review, the UN Security Council adopted a resolution that, inter alia, recalled the invitation in Resolution 2319 (2016) for the Joint Investigative Mechanism to brief the Resolution 1540 Committee on the relevant results of its work and requested the Committee to discuss ‘optimal approaches on enforcement’.71 Furthermore, in 2015 the UN Security Council adopted Resolution 2253, which required Member States to prevent the direct or indirect supply, sale or transfer of all types of weapons or related equipment to ISIL (Da’esh), Al-Qaida, and associated individuals or groups. Resolution 2253 also obliged Member States to take measures to ‘promote the exercise of enhanced vigilance’ by their nationals in the sale, purchase or transfer or any materials that could be used to manufacture ‘unconventional weapons’. In relation to the use of chemical weapons in Syria, the UN Security Council has echoed the words of the OPCW States Parties in a series of resolutions that have repeatedly affirmed ‘that the use of chemical weapons constitutes a serious violation

65

See Genocide Convention, above n. 19, Articles I, IV–V. Geneva Convention (I) 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, Article 49, entered into force 21 October 1950; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85, Article 50, entered into force 21 October 1950; Geneva Convention (III) relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135, Article 129, entered into force 21 October 1950; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287, Article 146, entered into force 21 October 1950. 67 See Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85, entered into force 26 June 1987, Articles 5 and 7. 68 UN Security Council 2006; UN Security Council 2008; UN Security Council 2011. 69 The 1540 Committee, a Committee of the Security Council established by Security Council 1540, consisting of all members of the Council, with the assistance of other expertise as appropriate, reports to the Security Council on the implementation of Resolution 1540. UN Security Council 2004. 70 UN Security Council 2016b, paras 58, 63–67. 71 UN Security Council 2016e, preambular para 6 and operative para 15. 66

130

Y. Naqvi and O. Elias

of international law’, stressed ‘that those individuals responsible for any use of chemical weapons must be held accountable’,72 and determined ‘that the use of chemical weapons anywhere constitutes a threat to international peace and security’.73 The resolutions have increasingly been linked to measures of accountability. Resolution 2209 (2015) endorsed the continuation of the OPCW Fact-Finding Mission and added the UN Security Council’s Chapter VII muscle to the Fact-Finding Mission by calling on ‘all parties in the Syrian Arab Republic to extend their full cooperation to the OPCW Fact-Finding Mission’.74 In the wake of the Fact-Finding Mission’s reports determining that chemical weapons had been used on a number of occasions in Syria, as well as graphic reports in the news media and human rights groups about such attacks, including video footage of one attack which was shown during a meeting of the UN Security Council, the latter adopted Resolution 2235 (2015) establishing the Joint Investigative Mechanism. The Joint Investigative Mechanism has the mandate to identify ‘to the greatest extent feasible’ individuals, entities, groups or Governments perpetrating, organizing, sponsoring or otherwise involved in the use of chemicals as weapons in Syria.75 In the resolution establishing the Joint Investigative Mechanism, the UN Security Council reaffirmed it would impose measures under Chapter VII of the UN Charter in response to violations of its resolution 2118 (2013). The mandate of the Joint Investigative Mechanism, initially for just one year, was extended by the UN Security Council in Resolution 2319 (2016) until November 2017.76 The new resolution required the Joint Investigative Mechanism to place more emphasis on the use of chemical weapons by non-State actors. It also encouraged the Joint Investigative Mechanism to consult appropriate UN counter-terrorism and non-proliferation bodies, in particular, the Resolution 1540 Committee and the ISIL (Da’esh) and Al-Qaida Sanctions Committee, in order to exchange information on non-State actor perpetration, organization, sponsorship, or other involvement in the use of chemicals as weapons in Syria, and requested the

72 UN Security Council 2013a, preambular para 8 and operative paras 1, 5 and 15 (notably, the language changes slightly to ‘should be held accountable’ in operative para 15); UN Security Council 2015a, preambular para 8. See also operative para 6 of UN Security Council 2015a in which the UN Security Council stressed again ‘that those individuals responsible for any use of chemicals as weapons, including chlorine or any other toxic chemical, must be held accountable’. In addition, see UN Security Council 2015b, operative para 4 (reiterating that ‘those individuals, entities, groups, or governments responsible for any use of chemicals as weapons, including chlorine or any other toxic chemical, must be held accountable’ and Security Council 2016c, preambular para 4 (‘reaffirming that the use of chemical weapons constitutes a serious violation of international law and reiterating that those individuals, entities, groups or Governments responsible for any use of chemical weapons must be held accountable’). 73 UN Security Council 2013a. 74 UN Security Council 2015a. 75 UN Security Council 2015b, para 5. 76 UN Security Council 2016d.

5 Chemical Weapons and Non-State Actors

131

Joint Investigative Mechanism to brief these bodies on the relevant results of its work.77 The Joint Investigative Mechanism found that ‘the information suggests the involvement of the [Syrian] Government and other actors’ in the chemical weapons attacks in Syria, and reaffirmed its abhorrence of the use of chemical weapons ‘under any circumstances’ and ‘its belief that it is absolutely crucial to hold those who use or intend to use chemicals as weapons accountable for their acts’.78 In terms of the acts of non-State actors,79 the Joint Investigative Mechanism has found that ISIL used sulphur mustard in two incidents: on 21 August 2015 in the town of Marea80 and on 15 September 2016 in the town of Umm Hawsh.81 The Joint Investigative Mechanism noted that accountability was ‘fundamental to deter all those who continue to believe that there is something to be gained from the use of toxic chemicals as weapons’ and underlined that ‘[n]o reason can justify their use or intent of use as weapons by anybody, anywhere’.82 In its seventh report, the Joint Investigative Mechanism concluded that: The continuing use of chemical weapons, including by non-State actors, is deeply disturbing. If such use, notwithstanding its prohibition by the international community, is not stopped now, a lack of consequences will surely encourage others to follow, not only in the Syrian Arab Republic, but also elsewhere. This is the time to bring these acts to an end.83

Despite its pledge to ‘to impose measures under Chapter VII of the United Nations Charter’ in response to violations of Resolution 2118 (2013) (which prohibits the use of chemical weapons in Syria by any party), the Security Council has so far failed to take any action. In fact, on 24 October and 16 November 2017, Russia used its veto for the ninth and tenth time respectively in relation to Syria to block resolutions that would have extended the mandate of the Joint Investigative Mechanism.84 However, the failure of the UN Security Council to take action as result of the Joint Investigative Mechanism reports should not be interpreted as

77

UN Security Council 2016d, paras 4 and 9, respectively. UN Security Council 2016f, para 82. 79 The JIM found that Syrian armed forces used chemical weapons on 21 April 2014 at Talmenes (chlorine), 16 March 2015 at Sarmin (chlorine) and 16 March 2015 at Qmenas (chlorine). UN Security Council 2016f paras 54 and 56; UN Security Council 2016a, para 19. On 26 October 2017, the JIM issued its report concluding that the Syrian Air Force was responsible for a sarin attack on the town of Khan Shaykhun attack in May 2017. UN Security Council 2017b, para 46. 80 UN Security Council 2016f, para 58. 81 UN Security Council 2017b, para 81. 82 UN Security Council 2016a, para 52. 83 UN Security Council 2017b, para 73. 84 Campos R 2017 Russia vetoes UN resolution to find out who carried out chemical weapons attacks in Syria, Independent, 24 October 2017. http://www.independent.co.uk/news/world/ europe/russia-syria-chemical-weapons-attack-sarin-un-resolution-china-moscow-assad-rebels-warlatest-a8017511.html. Accessed 21 May 2017; BBC News 2017 Syria: Russia blocks extension of chemical attacks probe, BBC News, 17 November 2017. 78

132

Y. Naqvi and O. Elias

practice that undermines the recognition that the use of chemical weapons by anyone in any circumstances is prohibited under customary international law. Rather, it is the political complexity of the war in Syria—combined with the veto power of the permanent members of the UN Security Council—that make the possibility of united and decisive action on accountability appear remote, not a disagreement on the law. The UN Secretary-General has made this point clear in his recent remarks on the subject: As previously determined by the Security Council, the use of chemical weapons anywhere constitutes a threat to international peace and security and a serious violation of international law. I hope that the Security Council will now be able to come together and use the tools available to it to take concrete steps to ensure that those who have used chemical weapons are held accountable, in order to deter and put an end to those inhumane acts. There can be no impunity for such abhorrent attacks.85

5.4.2

UN General Assembly Resolutions

The UN General Assembly has repeatedly condemned the use of chemical weapons. Since this is a forum with near universal participation, its resolutions may be ‘particularly relevant as evidence of or impetus for customary international law’.86 The practice of the UN General Assembly is strongly indicative of a customary international law prohibition of the use of chemical weapons by anyone in any circumstances, and individual criminal responsibility for such use. The UN General Assembly adopted a number of resolutions condemning the use of chemical weapons during the Iran-Iraq war, which recognised that such conduct violated the 1925 Geneva Protocol or other relevant rules of customary international law and which established the UN Secretary-General’s Mechanism for investigating such use. More recently, in relation to the war in Syria, the UN General Assembly adopted a resolution in 2014 that recognised that ‘the use of chemical weapons by anyone under any circumstances would be reprehensible and completely contrary to the legal norms and standards of the international community’.87 In 2015, the UN General Assembly emphasised that ‘any use of chemical weapons anywhere, at any time, by anyone, under any circumstances is unacceptable and would violate international law’ and expressed its strong conviction ‘that those individuals responsible for the use of chemical weapons should be held accountable’.88 A year

85

UN Security Council 2017a. UN International Law Commission 2013, para 46. See also UN International Law Commission 2015b, para 74. 87 UN General Assembly 2014, preambular para 8. 88 UN General Assembly 2015, preambular para 6. 86

5 Chemical Weapons and Non-State Actors

133

later, the UN General Assembly used even more unequivocal language in an operative paragraph: [the UN General Assembly] Condemns in the strongest possible terms the use of chemical weapons by anyone under any circumstances, emphasizing that any use of chemical weapons anywhere, at any time, by anyone, under any circumstances is unacceptable and is and would be a violation of international law, and expressing its strong conviction that those individuals responsible for the use of chemical weapons must and should be held accountable.89

In a resolution adopted a few days later, the UN General Assembly condemned in the strongest terms ‘the use of any toxic chemicals, such as chlorine by any party as a weapon in the Syrian Arab Republic’.90 The UN General Assembly also expressed ‘its strong conviction that those individuals responsible for the use of chemical weapons in the Syrian Arab Republic should be held accountable’ and called for a significant enhancement of the verification measures of the OPCW.91 Moreover, it stated ‘its deepest concern’ about the findings of the Joint Investigative Mechanism and reaffirmed the principles of the CWC and the ‘determination of the States parties to the Convention “for the sake of all mankind, to exclude completely the possibility of the use of chemical weapons, through the implementation of the provisions of this Convention”’.92 It also emphasised ‘the need for accountability for crimes involving breaches of international law, in particular of international humanitarian law and human rights law, some of which may constitute war crimes or crimes against humanity, committed in the Syrian Arab Republic since March 2011, through fair and independent investigations and prosecutions at the domestic or international level’.93 On 21 December 2016, the UN General Assembly established the ‘International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Those Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011’ (hereafter ‘IIIM’). In the resolution, the UN General Assembly expressed appreciation to the Joint Investigative Mechanism and recalled its reports and the conclusions contained therein.94 This would suggest that one of the crimes within the mandate of the IIIM —which is tasked with collecting and analysing evidence of violations of IHL and human rights law—would be the use of chemical weapons.95 This is confirmed in

89

UN General Assembly 2016a, operative para 1 (emphasis in original). UN General Assembly 2016c, operative para 4. See also operative para 3, and preambular paras 8 and 13. 91 Ibid., operative para 5. See also operative paras 6–9. 92 Ibid., preambular para 13. 93 Ibid., operative para 30. See also operative para 42, encouraging the UN Security Council to take ‘appropriate action to ensure accountability, noting the important role that the International Criminal Court may play in this regard’. 94 UN General Assembly 2016b, preambular para 5. 95 Ibid., operative para 4. 90

134

Y. Naqvi and O. Elias

the report of the UN Secretary-General on the establishment of the IIIM, which notes that the three chemical weapons attacks on which the Joint Investigative Mechanism made findings ‘may, depending on the circumstances, amount to war crimes and crimes against humanity’.96 The Joint Investigative Mechanism is specifically mentioned as a source from which the IIIM will collect evidence or relevant information.97

5.4.3

International Counter-Terrorism Treaties

A number of international counter-terrorism treaties contain obligations relevant to the use of chemical weapons by non-State actors. The widely ratified 1997 International Convention for the Suppression of Terrorist Bombings98 requires States Parties to prosecute or extradite any person present on their territory who ‘delivers, places, discharges or detonates’ a ‘weapon or device that is designed, or has the capability, to cause death, serious injury or substantial material damage through the release, dissemination or impact of toxic chemicals … or toxins’ as well as persons who attempt or aid and abet such crimes.99 The 187 States that are party to the 1999 International Convention for the Suppression of Financing of Terrorism are required to also criminalise the financing of an act prohibited by the 1997 Terrorist Bombings Convention, and to prosecute or extradite alleged offenders on their territory.100 The 2005 Protocol to the Convention for the Suppression of Unlawful Acts against the safety of Maritime Navigation similarly contains a prosecute or extradite obligation for States Parties in relation to persons on their territory who use against or on a ship or discharging from a ship a chemical weapon in a manner that causes or is likely to cause death or serious injury or damage, or who transports chemical weapons by ship, as well as those who aid and abet such crimes.101 The 2010 Convention on the Suppression of Unlawful Acts Relation to International Civil 96

UN Secretary-General 2017, para 6. Ibid., para 12. See also Annex, Terms of Reference of the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011, para 5(a). 98 International Convention for the Suppression of Terrorist Bombings, opened for signature 15 December 1997, 2149 UNTS 256, entered into force 23 May 2001. At the time of writing this chapter, there were 170 States Parties. 99 Ibid., Articles 1(3)(b), 2, 3, 6(4). 100 International Convention for the Suppression of the Financing of Terrorism, opened for signature 9 December 1999, 2178 UNTS 197, entered into force 10 April 2002. See Articles 2(a), 7(4). 101 Protocol to the Convention for the Suppression of Unlawful Acts against the safety of Maritime Navigation, opened for signature 14 February 2006, 1678 UNTS 222, entered into force 28 July 2010, Articles 2bis(a), 2ter, 5(3). 97

5 Chemical Weapons and Non-State Actors

135

Aviation requires its States Parties to prosecute or extradite persons present on their territory who have released or discharged from an aircraft in service any chemical weapon in a manner that causes or is likely to cause death, serious bodily injury or serious damage to property or the environment, as well as accomplices.102 In addition, a number of regional counter-terrorism treaties contain relevant provisions.103 Given that these instruments apply during times of peace, they provide additional relevant practice attesting that the use of chemical weapons by non-State actors in all circumstances is a violation of international law and has criminal consequences.

5.5

Accountability Measures

Unlike in the case of other banned weapons under international law, the use of chemical weapons has been the subject of two specific accountability measures established by the international community: the UN Secretary-General’s Mechanism and the Joint Investigative Mechanism. This practice is remarkable in view of the typically high political sensitivity that weapons–use regulations carry in the international arena. It attests to the singularly unified stance of the international community on the prohibition of chemical weapons in international law and the need for accountability. This section examines these mechanisms, as well as the options to prosecute the crime of using chemical weapons at the international and national levels.

5.5.1

The UN Secretary-General’s Mechanism

The establishment and use of the UN Secretary-General’s Mechanism is pertinent evidence of long-standing and uniform State practice and opinio juris attesting to the principle that the use of chemical weapons—wherever and by whomever—

102 Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation, opened for signature 10 September 2010, ICAO Doc. 9960, entered into force 1 July 2018. At the time of writing, there are 22 States Parties. 103 For example, the Arab Convention on the Suppression of Terrorism, opened for signature 22 April 1998, entered into force 7 May 1999; the Organization of African Unity Convention on the Prevention and Combating of Terrorism, opened for signature 14 July 1999, entered into force 6 December 2002; the Council of Europe Convention on the Prevention of Terrorism, opened for signature 15 May 2005, CETS No. 196, entered into force 1 June 2007; and the SAARC Regional Convention on the Suppression of Terrorism, opened for signature 4 November 1987, entered into force 22 August 1988.

136

Y. Naqvi and O. Elias

violates international customary law, and must be investigated and followed by accountability. The UN Secretary-General, pursuant to his authority under Article 99 of the UN Charter, carried out ad hoc investigations of alleged use of chemical weapons in the 1980s.104 This mechanism for investigating the use of chemical weapons was formalised in 1987,105 six years prior to the adoption of the CWC, when the UN General Assembly by resolution requested the UN Secretary-General to ‘carry out investigations in response to reports … brought to his attention by any Member State concerning the possible use of chemical … weapons that may constitute a violation of the 1925 Geneva Protocol or other relevant rules of customary international law in order to ascertain the facts of the matter, and to report promptly the results of any such investigation to all Member States’.106 A year later, following the reports in July and August 1988 of the UN Secretary-General on the allegations of the use of chemical weapons in the Iraq-Iran conflict (including the chemical weapons attack in Halabja in northern Iraq on 16 March 1988 which killed between 3,200 and 5,000 people), the UN Security Council endorsed this Mechanism, encouraging the UN Secretary-General to carry out these investigations into violations of the 1925 Geneva Protocol or ‘other relevant rules of customary international law’ and to report the results.107 The UN Security Council further decided that it would take ‘appropriate and effective measures in accordance with the Charter of the United Nations, should there be any future use of chemical weapons in violation of international law, wherever and by whomever committed’.108 Interestingly, it is this same language that was used by the OPCW and the UN more than 20 years later in the decisions related to Syria discussed above. The reference to customary international law in the UN resolutions was necessary since the 1925 Geneva Protocol only applies during IACs and therefore would not have applied to the use of chemical weapons by Iraq against its own people. The words ‘wherever’ and ‘whomever’ also underlined the UN Security Council’s view that the prohibition of the use of chemical weapons under customary international law directly applied to non-State actors and in all circumstances, including NIACs. 104 Article 99 of the UN Charter provides: ‘The Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security’. UN Secretary-General Javier Pérez de Cuéllar indirectly justified his independent investigations of Iraqi chemical weapons use in the 1980–88 Iran-Iraq war by using his Article 99 authority. See UN Secretary-General 1986. 105 In 1982, the UN General Assembly adopted a resolution that requested the UN Secretary-General ‘to investigate, with the assistance of qualified experts, information that may be brought to his attention by any Member State concerning activities that may constitute a violation of the [1925] Protocol or of the relevant rules of customary international law’. UN General Assembly 1982, section E, para 4. However, the resolution was not adopted unanimously, and the UN Secretary-General preferred to conduct such activities under his authority pursuant to Article 99 of the UN Charter. 106 UN General Assembly 1987, para 4 (emphasis added). 107 UN Security Council 1988c. 108 Ibid., para 4 (emphasis added).

5 Chemical Weapons and Non-State Actors

137

This interpretation was affirmed in 1992 when an investigation was carried out by the UN Secretary-General’s Mechanism on the request of Mozambique in relation to alleged chemical weapons use by a non-State group (the Mozambican National Resistance (RENAMO)) against Government forces.109 Apart from a 1992 investigation in Azerbaijan in relation to alleged chemical weapons used by Armenia,110 the Mechanism lay unused for more than 20 years until 2013. The Mechanism was triggered, first on the request of the Syrian Arab Republic111 and then later by other States, in regard to multiple allegations of chemical weapons use in the armed conflict in Syria. The UN team arrived in Damascus on 18 August 2013. A few days later, on 21 August 2013, a large chemical weapons attack was reported in the Ghouta area of Damascus. The team was instructed by the UN Secretary-General to investigate this incident as a priority. The Head of the Mission presented a report—confirming the use of chemical weapons (sarin)—to the UN Security Council and the UN General Assembly on 15 September 2013.112 The UN Secretary-General stated, in his cover note to the report, that ‘any use of chemical weapons by anyone in any circumstances is a grave violation of international law’.113 The use of the term ‘grave violation of international law’ is significant, since it is reminiscent of the words ‘grave breaches’ of the Geneva Conventions and ‘serious violations of the laws and customs of war’, used to identify those violations of IHL that attract individual criminal responsibility. The words ‘international law’ likely refer to customary international law since Syria was not a State party to the CWC at the time of these attacks. The fact that the UN Secretary-General refers to customary international law, while also noting that it could be violated by ‘anyone’ in ‘any circumstances’ also suggests that individuals―including non-State actors―would be directly bound by this prohibition, and that the prohibition applies both in times of peace and during armed conflict. Although chemical weapons attacks continued in Syria after the issuance of the UN team’s report, the Mechanism was not triggered again. Instead, since Syria acceded to the CWC in September 2013 as a result of the Framework Agreement on the Elimination of Syrian Chemical Weapons between the Russian Federation and 109

UN Secretary-General 1991. The report concluded that from the material available it was not possible to determine whether or not a chemical weapon was used against the Mozambican government. 110 UN Secretary-General 1992. The experts determined that no evidence of the use of chemical weapons had been presented to them. 111 On 19 March 2013, the Syrian Government reported the alleged use of chemical weapons in the Khan Al-Asal area of the Aleppo Governorate. The following day, Syria asked the UN Secretary-General to launch an urgent investigation under the auspices of his Mechanism. The UN Secretary-General agreed to do so and contacted the OPCW and the World Health Organization (WHO) requesting their cooperation in mounting an investigation. 112 The report concludes that chemical weapons (sarin) were used on relatively large scale, resulting in numerous casualties, particularly among civilians. UN Secretary-General 2013, para 27. 113 Ibid., para 4 (emphasis added).

138

Y. Naqvi and O. Elias

the United States,114 further allegations of chemical weapons use were investigated by the OPCW’s Fact-Finding Mission, established in early 2014, as described above. As noted, the findings of the Fact-Finding Mission have become the basis for an additional accountability mechanism—the Joint Investigative Mechanism— which may in turn lead to State responsibility and/or individual criminal responsibility.

5.5.2

The OPCW-UN Joint Investigative Mechanism

As outlined above, the OPCW-UN Joint Investigative Mechanism has the mandate to identify those responsible for the chemical weapons attacks in Syria that have been the subject of findings by the Fact-Finding Mission. The Joint Investigative Mechanism has found that ISIL used sulphur mustard in two incidents: on 21 August 2015 in the town of Marea115 and on 15 September 2016 in the town of Umm Hawsh.116 As noted, the UN Security Council has decided and reaffirmed its decision that, in the event of ‘any use of chemical weapons by anyone in the Syrian Arab Republic’, it will ‘impose measures under Chapter VII of the United Nations Charter’.117 The measures available under Chapter VII include a referral of the situation in Syria to the ICC118 or the establishment of an ad hoc international or hybrid tribunal to investigate and prosecute persons allegedly responsible for chemical weapons crimes.119 Failing to reach agreement on these types of measures, the UN Security Council could signal its clear recognition that the use of

114 Framework Agreement on the Elimination of Syrian Chemical Weapons, signed by the United States and the Russian Federation on 14 September 2013. The Agreement set out the plan for the removal and destruction of all categories of chemical weapons-related materials and equipment under OPCW’s supervision with the objective of completing such removal and destruction in the first half of 2014. 115 UN Security Council 2016f, para 58. 116 UN Security Council 2017b, para 81. 117 UN Security Council 2013a, para 21; Security Council 2015b, para 15. Notably, this statement was not reaffirmed in Security Council 2016d which extended the duration of the JIM. 118 Rome Statute, above n. 17, Article 13(b). A draft resolution that would have had the UN Security Council refer the situation of Syria to the International Criminal Court proposed by France in 2014 was vetoed by two permanent members of the UN Security Council, the Russian Federation and China. UN Security Council Referral of Syria to International Criminal Court Fails as Negative Votes Prevent Security Council from Adopting Draft Resolution, United Nations Meetings Coverage and Press Releases SC/11407, 22 May 2014. 119 The UN Security Council has established two ad hoc international criminal tribunals using its Chapter VII powers, the ICTY and the International Criminal Tribunal for Rwanda. The UN has also been instrumental in the establishment of hybrid courts such as the Extraordinary Chambers in the Courts of Cambodia, Special Court for Sierra Leone, Special Tribunal for Lebanon, Special Panels in East Timor, and the Supreme Iraqi Criminal Tribunal.

5 Chemical Weapons and Non-State Actors

139

chemical weapons in any circumstances by anyone is an international crime, opening up further possibilities for national prosecutions. However, to date, despite the reports of the Joint Investigative Mechanism assigning responsibility to both State and non-State actors for chemical weapons attacks in six separate incidents, any such action by the UN Security Council remains stymied by the likely use of the veto by Russia. On 24 October 2017, Russia used its veto for the ninth time in relation to Syria to block a resolution that would have extended the mandate of the Joint Investigative Mechanism.120 In this situation, where the UN Security Council is blocked from taking action, the role of the OPCW policy-making organs in taking measures of redress takes on renewed significance. Unlike the UN Security Council, the policy-making organs of the OPCW are not subject to a veto power of any particular members. While decisions are usually taken by consensus, they may be taken by a majority vote.121 Hence, in response to the Joint Investigative Mechanism’s reports in 2016, the OPCW Executive Council adopted a decision by majority vote, which, inter alia, instructed the Technical Secretariat to inspect the sites identified by the Joint Investigative Mechanism as having been involved in the chemical weapons attacks.122 The CWC requires the Conference of States Parties to take the ‘necessary measures’ to redress and remedy ‘any situation which contravenes the provisions of the Convention’, and sets out certain options including the possibility of recommending collective measures to States Parties.123 However, these measures are directed at States Parties. It is not clear what measures could be taken against non-State actors. In determining what ‘necessary measures’ might be required to redress the situation caused by a non-State actor using chemical weapons, the Conference of States Parties could arguably draw from the recommendations of the Open-Ended Working Group on Terrorism and its Sub-Working Group. As far as accountability measures are concerned, recognizing or establishing a duty of States Parties to investigate, prosecute and punish offenders regardless of the nationality of the offender or place where the crime took place, could be one way to redress the situation. Another measure might be, as mentioned, the setting up of an ad hoc international or hybrid tribunal to try offenders.124 Campos R 2017 Russia vetoes UN resolution to find out who carried out chemical weapons attacks in Syria, Independent, 24 October 2017. http://www.independent.co.uk/news/world/ europe/russia-syria-chemical-weapons-attack-sarin-un-resolution-china-moscow-assad-rebels-warlatest-a8017511.html. Accessed 21 May 2017. 121 Rule 36 of the OPCW Executive Council Rules of Procedure provides that ‘decisions of the Council on matters of substance shall be made by a two-thirds majority of all its members’. Rule 69 of the OPCW Conference of States Parties Rules of Procedures provides that where consensus is not attainable, ‘the Conference shall take the decision [on matters of substance] by a two-thirds majority of the Members present and voting unless specified otherwise in the Convention.' 122 OPCW 2016b, para 10. 123 CWC, above n. 3, Articles VIII(21)(k) and XII. 124 Article VIII(f) of the CWC, above n. 3, provides that the Conference of States Parties may establish ‘such subsidiary organs as it finds necessary for the exercise of its functions in accordance with the Convention’. Other international organisations have established ad hoc 120

140

5.5.3

Y. Naqvi and O. Elias

Options to Prosecute Under the Rome Statute of the International Criminal Court

Should the ICC have jurisdiction over a situation in which non-State actors have used chemical weapons, as discussed above, alleged perpetrators could be investigated and prosecuted for the war crime of employing ‘poison or poisoned weapons’ or ‘asphyxiating, poisonous or other gases in a NIAC.125 In addition, it may be possible to prosecute the use of chemical weapons as a crime against humanity under Article 7 of the Rome Statute, where such usage results in one of the proscribed acts, such as murder, extermination, persecution,126 or other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health, and the act is perpetrated as part of a widespread or systematic attack upon a civilian population. In this respect, a single instance of the use of chemical weapons that is perpetrated in the context of a widespread or systematic attack against a civilian population in furtherance of an organizational policy by a non-State group to carry out such an attack could amount to a crime against humanity.127 Alternatively, a series of usages of chemical weapons might also amount to a crime against humanity. Since crimes against humanity may be perpetrated in all circumstances (i.e. during war or during peace time), this option provides support for the contention that a non-State actor is directly bound by customary international law prohibiting the use of chemical weapons in all circumstances, albeit in the limited context of crimes against humanity. The use of chemical weapons could even be prosecuted as genocide under Article 8 of the Rome Statute, where such an act constituted one of the proscribed acts, such as killing members of the group or causing serious bodily harm, and was accompanied with the intent to destroy, in whole or in part, a national, ethnical,

international criminal courts. For example, the Extraordinary African Chambers were established under an agreement between the African Union and Senegal to try international crimes committed in Chad from 7 June 1982 to 1 December 1990. 125 Rome Statute, above n. 17, Article 8(2)(e)(xiii)–(xiv). While this provision has been part of the Statute since 26 September 2012, it is only applicable for those States Parties which have ratified it, one year after doing so. It is unclear if State consent would also be required should the Security Council refer a situation. For a discussion, see Akande 2013. 126 Persecution could be proved if the person or persons are targeted by chemical weapons by reason of the identity of a group or collectivity or targeted the group or collectivity as such. International Criminal Court, Elements of Crimes, Article 7(1)(h)(2). 127 Ban Ki Moon, the former UN Secretary-General, has stated that the use of any chemical weapons in Syria would amount to a ‘crime against humanity’ and there would be ‘serious consequences’ for the perpetrators. UN News 2013 Use of chemical weapons in Syria would be ‘crime against humanity’ – Ban, UN News, 23 August 2013. http://www.un.org/apps/news/story. asp?NewsID=45684#.WHX2rlMrLcs. Accessed 21 December 2016. Similarly, US President Barack Obama stated that the use of chemical weapons would constitute a crime against humanity. The White House 2013 Remarks by the President in Address to the Nation on Syria, Office of the Press Secretary, 10 September 2013. https://www.whitehouse.gov/the-press-office/2013/09/10/ remarks-president-address-nation-syria. Accessed 21 December 2016.

5 Chemical Weapons and Non-State Actors

141

racial or religious group, as such. As seen in the case law outlined below, the use of chemical weapons has been previously prosecuted as a means to carry out genocidal acts. As with crimes against humanity, the crime of genocide can be perpetrated in all circumstances, which is another part of customary international law that would directly prohibit a non-State actor from using chemical weapons, albeit in particular circumstances.

5.5.4

National Courts

There have been a number of cases at the national level prosecuting non-State actors for the use or possession of chemical weapons. Many of these cases relied on the relevant domestic implementing legislation of the CWC, often in conjunction with terrorism charges, and all concern the acts of individuals during peace time.128 Domestic courts have typically stressed the gravity of the crime, including the lethality of the agent in question, and the possible connection to terrorism, in distinguishing between these crimes and ‘ordinary’ assault-type crimes.129 For instance, in the Bond case, the US Supreme Court, noting that ‘the [US] statute arose—[from] a treaty about chemical warfare and terrorism’, found that ‘the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon. There is no reason to suppose that [the US] Congress—in implementing the Convention on Chemical Weapons—thought 128

See e.g. R v. Davison (Unreported, Newcastle Crown Court, Milford J, 14 May 2010) (where a defendant linked to a white supremacist group produced a quantity of ricin sufficient to kill nine persons in violation of s. 2(1)(b) of the Chemical Weapons Act 1996 (United Kingdom). He was also charged with preparation of a terrorist act); United States v. Levenderis, 806 F.3d 390 (2015) (where a defendant produced a quantity of ricin – although there was no link to a terrorist group, the Court found that the high lethality of the chemical weapon justified the prosecution under the Chemical Weapons Implementation Act 1998 (United States)); United States v. Fries, 781 F.3d 1137 (2015) (concerning the production and use of a chemical weapon in violation of the Chemical Weapons Implementation Act 1998 (United States) related to the home-made production and use of a chlorine chemical device which produced a cloud that required the evacuation of a neighbourhood); United States v. Ghane, 673 F.3d 771 (8th Cir. 2012) (where the defendant possessed enough potassium cyanide to kill 450 people); United States v. Crocker, 260 F. App’x 794 (6th Cir. 2008) (where the defendant attempted to acquire VX nerve gas and chlorine gas as part of a plot to attack a federal courthouse); United States v. Krar, 134 F. App’x 662 (5th Cir. 2005) (per curiam) (where the defendant possessed sodium cyanide); United Kingdom v. Ali (Unreported, Central Criminal Court (Old Bailey), Saunders J, 18 September 2015 (where the defendant attempted to acquire ricin on the dark web in contravention of the Chemical Weapons Act 1996 (United Kingdom)). 129 See e.g. United States v. Levenderis, 806 F.3d 390 (2015) (noting that ricin is extremely deadly, that there is no known antidote for ricin poisoning, that it has the potential to pose a severe threat to public health and safety, that it is listed in Schedule 1 of the Annex on Chemicals in the Chemical Weapons Convention, and that the defendant’s intended use of ricin had the potential to cause mass harm).

142

Y. Naqvi and O. Elias

otherwise’.130 This judgment may suggest that the crimes falling within the implementing legislation of the CWC―at least in the US―are of a different category to ‘ordinary’ crimes; they are a category that is linked to serious threats to international peace and security, like core international crimes. In addition to the crimes established by legislation implementing the CWC, States are also able to prosecute non-State actors for chemical weapons-related crimes as regular criminal offences, such as murder, assault, and grievous bodily harm.131 But such crimes do not generally capture the particular nature and gravity, or the full breadth of criminality, of offences stipulated by CWC-implementing legislation. The use of chemical weapons can also potentially be prosecuted at the national level as a core international crime, i.e. war crimes, genocide or crime against humanity, should all the elements of the requisite crime be fulfilled, and national legislation incorporating such international crimes into domestic law is in place. In this respect, there is some domestic practice of such prosecutions taking place. In the Zyklon B Case before a British Military Court at Hamburg in Germany, the owner and second in command of the company which arranged the supply of Zyklon B poison gas to the Nazi Schutzstaffel (SS) were convicted of war crimes for supplying ‘poison gas used for the extermination of allied nationals interned in concentration camps well knowing that the said gas was to be so used’ during World War II.132 Originally, Zyklon B was developed as an insecticide, but it was later used by the Nazi SS to kill humans in the concentration camps; four and a half million persons were exterminated by the use of Zyklon B in Auschwitz/Birkenau alone.133 The case is instructive as to how the use of a chemical weapon used as a tool for the ‘wholesale extermination of human beings’134 can be prosecuted as an international crime.135 It is notable that British jurisdiction in that case was based, in part, on universal jurisdiction ‘under which every independent State has in International Law jurisdiction to punish pirates and war criminals in its custody regardless of the nationality of the victim or the place where the offence was

130

Bond v. United States, 572 U.S. (2014), at 2090 and 2093, respectively. For example, Shoko Asahara, founder and leader of the Aum Shinrikyo Japanese cult responsible for the 1995 sarin attacks in Tokyo, was charged with 27 counts of murder and other 16 other offences. At the time, Japan had not yet adopted domestic implementing legislation for the CWC. 132 British Military Court, Case No. 9, The Zykon B Case, British Military Court, Hamburg, 8 March 1946, Law Reports of Trials of War Criminals, UN War Crimes Commission, Vol. I, 1947, at 93. 133 Tucker 2006. 134 Case No. 9, The Zyklon B Case, British Military Court, Hamburg, 8 March 1946, Law Reports of Trials of War Criminals, United Nations War Crimes Commission, Vol I, 1947, at 94. 135 The acts were prosecuted as war crimes since genocide was not yet codified as an international crime at the time of these trials (the Genocide Convention was adopted in 1948). In addition, by reason of the application of the laws of war at the time by the military tribunals after World War II, the case focused on the murder of interned ‘allied’ civilians, rather than on the murder of the Jews, despite the fact that the Jews were the primary victims of Zyklon B. 131

5 Chemical Weapons and Non-State Actors

143

committed’.136 Moreover, the case showed how non-State actors (i.e. civilian owners and employees of a company) could be held criminally liable for an international crime involving the use of toxic chemicals as weapons.137 The use of chemical and biological weapons by Imperial Japan through its infamous Units 731 and 100 in China during World War II138 was prosecuted domestically in the Soviet Union as a crime against humanity.139 The use of chemical and biological weapons was characterised in the submissions of different parties during the trial, as ‘deeds that in every civilized country are regarded as heinous crime’.140 Other individuals involved in Units 731 and 100 were also prosecuted by Chinese authorities after World War II, but there are no reliable records of those trials.141 There were no other prosecutions despite the large number of reported victims. This was facilitated, inter alia, by a secret deal that General Douglas MacArthur, Supreme Commander of the Allied Occupation Forces in Japan, had concluded with the military commander and staff of Unit 731 whereby immunity from prosecution was provided in return for the unit’s research.142 Although the judgment in the Shimoda case in 1963 dealt with the legality of the use of nuclear weapons rather than chemical weapons, Japan’s District Court of Tokyo did note, in passing, that any new weapon that had similar or greater effects as other weapons prohibited by international law, such as poison and poisonous gases, was equally prohibited.143 Two other notable domestic prosecutions have occurred where the use of chemical weapons was prosecuted as an international crime—both in relation to the use of chemical weapons by the Iraqi government in the 1980s. In Van Anraat, a Dutch chemical dealer who sold the component chemicals that was used to make mustard gas to Saddam Hussein’s government was tried in The Netherlands for complicity in genocide and war crimes. Ultimately, he was acquitted of the

136 Ibid., Notes on the Case, at 103. British jurisdiction was mainly based on its assumption of ‘supreme authority with respect to Germany’ as one of the four Allied Powers occupying Germany after World War II which allowed it to prosecute German nationals for crimes wherever committed. 137 Ibid., (The activities with which the accused in the present case were charged were commercial transactions conducted by civilians. The Military Court acted on the principle that any civilian who is an accessory to a violation of the laws and customs of war is himself liable as a war criminal). 138 Harris 1994; Tourinsky 2008, p 46. 139 Working R 2001 The trial of Unit 731, The Japan Times, 5 June 2001. http://www.japantimes. co.jp/opinion/2001/06/05/commentary/world-commentary/the-trial-of-unit-731/#.VurYY-IrIdU. Accessed 18 March 2016; Piccigallo 1979; Yamada 1950. 140 Yamada 1950, p 490. 141 Piccigallo 1979. 142 Roling and Cassese 1992, p 18. 143 District Court of Tokyo, Ryushi et al. v. The State, District Court of Tokyo, Shimoda Case, 7 December 1963, Judgement, para 11, reprinted in International Legal Reports 32–33, at 626–642.

144

Y. Naqvi and O. Elias

genocide charge but convicted on the war crimes charge.144 The conviction was upheld by the Court of Appeals145 and the Supreme Court of the Netherlands,146 and later the European Court of Human Rights (ECtHR) held that ‘it c[ould not] be maintained that, at the time when the applicant was committing the acts which ultimately led to his prosecution, there was anything unclear about the criminal nature of the use of mustard gas either against an enemy in an international conflict or against a civilian population present in border areas affected by an international conflict’.147 Both the Van Anraat and Zyklon B cases provide pertinent support for the view that customary international law prohibits anyone from using chemical weapons, and demonstrate how extended modes of liability may be used to cast the net of legal responsibility beyond the direct perpetrators. In the Anfal case,148 the Iraqi Special Tribunal found Ali Hassan Al-Majid, the Secretary General of the Northern Bureau of the Ba’ath Party, responsible for commanding all Iraqi State agencies in the Kurdish-populated region of Iraq in 1987–1988 and guilty of committing genocide against the Kurds using chemical weapons. The Iraqi High Tribunal found that there was a ‘clear plan’ to target the Kurdish population with sarin and mustard gas by Al-Majid, who was responsible for the implementation of a policy to exterminate the Kurdish population in a joint criminal enterprise with Saddam Hussein.149

5.6

Conclusion

At first glance, it does not appear that international law has much to say about the legality of the use of chemical weapons by non-State actors in all circumstances. The CWC prohibits States Parties from using chemical weapons anywhere at any time, but non-State actors become bound by this prohibition only by reason of 144

District Court of The Hague, Public Prosecutor v. Frans Cornelius van Anraat, 23 December 2005, Case No. 09/751003-04, http://www.haguejusticeportal.net/index.php?id=4497. Accessed 19 July 2016. (link no longer available) 145 Court of Appeal of The Hague, Public Prosecutor v. Frans Cornelis van Anraat, 9 May 2007, Case No. 2200050906-2. 146 Supreme Court of the Netherlands, Public Prosecutor v. Frans Cornelis van Anraat, 30 June 2009, Case No. 07/10742. 147 ECtHR, Frans Cornelis van Anraat v. The Netherlands, 6 July 2010, Case No. 65389/09, para 96. 148 Iraqi High Tribunal, Farhan Mutlak Al Jibouri, Sultan Hashim Ahmad Al Tae’e, Hussein Rashid Moharmned and Ali Hasan Al Majid v the General Prosecutor, Appeals Commission, 4 September 2007. http://www.worldcourts.com/ist/eng/decisions/2007.09.04_Prosecutor_v_al_ Majid_et_al.pdf. Accessed 21 May 2017. 149 Ibid. Evidence in the case included a number of audio tapes recording meetings of Al-Majid with senior Ba’ath Party officials in 1988 and 1989, in which Al-Majid stated: ‘I will kill them all with chemical weapons! Who is going to say anything? The international community? Fuck them! The international community and those who listen to them’.

5 Chemical Weapons and Non-State Actors

145

national penal law that all States Parties are required to promulgate, while customary IHL prohibits the use of chemical weapons by non-State actors but only during a situation of armed conflict. The UN Security Council has expressed its concern about the risk of non-State actors acquiring and using chemical weapons, but requires States to prohibit such activities by non-State actors by adopting national laws. However, the required criminalisation of the use of chemical weapons at the national level, combined with the repeated and uncontested pronouncements by States that the use of chemical weapons by anyone in any circumstances is a violation of international law in different international fora representative of all the States of the world and made in the context of investigating chemical weapons attacks, are strong evidence that customary international law prohibits non-State actors from using chemical weapons in all circumstances. The implication of this State practice—coupled with the significant action of international bodies establishing no less than two UN mechanisms and one OPCW mission mandated with investigating the use of chemical weapons regardless of the perpetrator—is that chemical weapons attacks must be investigated and the perpetrators held accountable as a matter of customary international law. With the issuance of the Joint Investigative Mechanism’s reports identifying the perpetrators of chemical weapons attacks in Syria and more to come in the following months, the international community stands at a crossroads in terms of whether States are willing to take the necessary measures to turn rhetoric into reality and deliver on accountability. Recognising that non-State actors are bound by the prohibition of the use of chemical weapons as a matter of customary international law may be a first step towards that end. Further, increasing the effective use by States of the existing legal framework that has been established to prevent non-State actors from acquiring and using chemical weapons is key to countering the threat posed by non-State actors and chemical weapons

References Akande D (2013) Can the ICC Prosecute for Use of Chemical Weapons in Syria. https://www. ejiltalk.org/can-the-icc-prosecute-for-use-of-chemical-weapons-in-syria/. Accessed 10 November 2017. Ambos K (2009) Treatise on International Criminal Law. Volume II: The Crimes and Sentencing. Oxford University Press, Oxford. Asada M (2015) A Path to a Comprehensive Prohibition of the Use of Chemical Weapons under International Law: From The Hague to Damascus. Journal of Conflict & Security Law 21:153– 207. Buergenthal T, Murphy SD (2013) Public International Law in a Nutshell. West Academic Publishing, St. Paul. Harris SH (1994) Factories of Death: Japanese Biological Warfare, 1932–45 and the American Cover-Up, 2nd edn. Routledge, London/New York.

146

Y. Naqvi and O. Elias

International Committee of the Red Cross (n.d.) Customary IHL Database. https://ihl-databases. icrc.org/customary-ihl/eng/docs/v1_rul. Accessed 2 May 2019. Meier O, Trapp R (2016) Russia’s chemical terrorism proposal: Red herring or useful tool? Bulletin of the Atomic Scientists. https://thebulletin.org/russia%E2%80%99s-chemicalterrorism-proposal-red-herring-or-useful-tool9531. Accessed 14 November 2017. Ninth UN Congress on the Prevention of Crime and the Treatment of Offenders (1995) Interim Report by the Secretariat, ‘Results of the supplement to the Fourth United Nations Survey of Crime Trends and Operations of Criminal Justice Systems, on Transnational Crime’. UN Doc. A.CONF.169/15/Add.1. Organization for the Prohibition of Chemical Weapons (n.d.) Annex on Chemicals Schedule 2. https://www.opcw.org/chemical-weapons-convention/annexes/annex-chemicals/schedule-2. Accessed 21 May 2017. Organization for the Prohibition of Chemical Weapons (2013a) Executive Council Decision, ‘Destruction of Syrian Chemical Weapons’. EC-M-33/DEC.1. Organization for the Prohibition of Chemical Weapons (2013b) Report of the Third Special Session of the Conference of the States Parties to Review the Operation of the Chemical Weapons Convention. RC-3/3*. Organization for the Prohibition of Chemical Weapons (2015a) Executive Council Decision, ‘Further Reports of the OPCW Fact-Finding Mission in Syria’. EC-M-50/DEC.1. Organization for the Prohibition of Chemical Weapons (2015b) Executive Council Decision, ‘Reports of the OPCW Fact-Finding Mission in Syria’. EC-M-48/DEC.1. Organization for the Prohibition of Chemical Weapons (2015c) Ieper Declaration. Organization for the Prohibition of Chemical Weapons (2015d) Note by the Technical Secretariat, Status of Participation in the Chemical Weapons Convention as at 17 October 2015. S/1315/2015. Organization for the Prohibition of Chemical Weapons (2015e) Technical Secretariat’s Note, ‘The Chemical Weapons Convention and the Accountability of Non-State Actors: Discussion Paper’. S/1254/2015. Organization for the Prohibition of Chemical Weapons (2016a) Executive Council Decision, ‘Destruction of Libya’s Remaining Chemical Weapons’. EC-M-52/DEC.1. Organization for the Prohibition of Chemical Weapons (2016b) Executive Council Decision, ‘OPCW-United Nations Joint Investigative Mechanism Reports on Chemical Weapons Use in the Syrian Arab Republic’. EC-83/DEC.5. Organization for the Prohibition of Chemical Weapons (2016c) Note by the Technical Secretariat Establishment of a Rapid Response Assistance Team. S/1381/2016. Organization for the Prohibition of Chemical Weapons (2016d) Report by the Director-General, Overview of the Status of Implementation of Article VII of the Chemical Weapons Convention as at 31 July 2016. EC-83/DG.11, C-21/DG.11. Organization for the Prohibition of Chemical Weapons (2016e) Statement by Sixty-One Concerned States Parties to the Chemical Weapons Convention Concerning the Confirmed Use of Chemical Weapons in the Syrian Arab Republic. C-21/NAT.17. Organization for the Prohibition of Chemical Weapons (2016f) Statement on behalf of the European Union. Delivered by Mr Jacek Bylica, Special Envoy for Non-Proliferation and Disarmament. C-21/NAT.5. Organization for the Prohibition of Chemical Weapons (2016g) Switzerland: Statement at the Twenty-First Session of the Conference of the States Parties. C-21/NAT.37. Organization for the Prohibition of Chemical Weapons (2017a) Executive Council Decision, ‘Addressing the Threat Posed by the use of Chemical Weapons by Non-State Actors’. EC-86/ DEC.9. Organization for the Prohibition of Chemical Weapons (2017b) Sweden: Statement at the 54th Meeting of the Executive Council. EC-M-54/NAT.17. Orakhelashvili A (2007) Security Council Acts: Meaning and Standards of Review. Max Planck Yearbook of United Nations Law 11:143–195. Piccigallo PR (1979) The Japanese on Trial. University of Texas Press, Austin. Roling BVA, Cassese A (1992) The Tokyo Trial and Beyond. Polity Press, Cambridge.

5 Chemical Weapons and Non-State Actors

147

Sandoz Y et al (eds) (1987) Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949. International Committee of the Red Cross, Geneva. Schabas W (2013) Chemical Weapons: Is it a Crime? http://humanrightsdoctorate.blogspot.nl/ 2013/04/chemical-weapons-is-it-crime.html. Accessed 6 January 2017. Tourinsky S (ed) (2008) Medical Aspects of Chemical and Biological Warfare. Office of the Surgeon General & US Army Medical Department Center and School. Borden Institute, Washington D.C. Tucker JB (2006) War of Nerves: Chemical Warfare from World War I to Al-Qaeda. Pantheon Books, New York. UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (1998) Report of the Preparatory Committee on the Establishment of an International Criminal Court. UN Doc. A/CONF.183/2. UN General Assembly (1982) Chemical and bacteriological (biological) weapons. UN Doc. A/ RES/37/98. UN General Assembly (1987) Chemical and bacteriological (biological) weapons. UN Doc. A/ RES/42/37. UN General Assembly (2014) Implementation of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction. UN Doc. A/RES/69/67. UN General Assembly (2015) Implementation of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction. UN Doc. A/RES/70/41. UN General Assembly (2016a) Implementation of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction. UN Doc. A/RES/71/69. UN General Assembly (2016b) International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011. UN Doc. A/RES/ 71/248. UN General Assembly (2016c) Situation of human rights in the Syrian Arab Republic. UN Doc. A/RES/71/203. UN International Law Commission (2013) First report on formation and evidence of customary international law by Michael Wood, Special Rapporteur. UN Doc. A/CN.4/663. UN International Law Commission (2015a) Identification of customary international law. Text of the draft conclusions provisionally adopted by the Drafting Committee. UN Doc. A/CN.4/ L.869. UN International Law Commission (2015b) Third Report on identification of customary international law by Michael Wood, Special Rapporteur. UN Doc. A/CN.4/682. UN International Law Commission (2016) Identification of customary international law. UN Doc. A/CN.4/L.872. UN Secretary-General (1986) Report of the Mission Dispatched by the Secretary-General to Investigate Allegations of the Use of Chemical Weapons in the Conflict between the Islamic Republic of Iran and Iraq. UN Doc. S/17911. UN Secretary-General (1991) Report of the Mission dispatched by the Secretary-General to Investigate an Alleged Use of Chemical Weapons in Mozambique. UN Doc. S/24065. UN Secretary-General (1992) Report of the Mission Dispatched by the Secretary-General to Investigate Reports of the Use of Chemical Weapons in Azerbaijan. UN Doc. S/24344. UN Secretary-General (2013) Report of the United Nations Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic on the alleged use of chemical weapons in the Ghouta area of Damascus on 21 August 2013. UN Doc. A/67/997-S/2013/553. UN Secretary-General (2017) Implementation of the resolution establishing the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011. UN Doc. A/71/755.

148

Y. Naqvi and O. Elias

UN Security Council (1987) Resolution 598. UN Doc. S/RES/598. UN Security Council (1988a) Resolution 612. UN Doc. S/RES/612. UN Security Council (1988b) Resolution 619. UN Doc. S/RES/619. UN Security Council (1988c) Resolution 620. UN Doc. S/RES/620. UN Security Council (2001) Resolution 1373. UN Doc. S/RES/1373. UN Security Council (2004) Resolution 1540. UN Doc. S/RES/1540. UN Security Council (2006) Report of the Committee established pursuant to resolution 1540 (2004). UN Doc S/2006/257. UN Security Council (2008) Report of the Committee established pursuant to Security Council resolution 1540 (2004). UN Doc S/2008/493. UN Security Council (2011) Report of the Committee established pursuant to Security Council resolution 1540 (2004). UN Doc S/2011/579. UN Security Council (2013a) Resolution 2118. UN Doc. S/RES/2118. UN Security Council (2013b) Resolution 2125. UN Doc. S/RES/2125. UN Security Council (2015a) Resolution 2209. UN Doc. S/RES/2209. UN Security Council (2015b) Resolution 2235. UN Doc. S/RES/2235. UN Security Council (2016a) Fourth report of the Organization for the Prohibition of Chemical Weapons-United Nations Joint Investigative Mechanism. UN Doc. S/2016/888. UN Security Council (2016b) Report of the Security Council Committee established pursuant to resolution 1540 (2004). UN Doc S/2016/1038. UN Security Council (2016c) Resolution 2298. UN Doc. S/RES/2298. UN Security Council (2016d) Resolution 2319. UN Doc. S/RES/2319. UN Security Council (2016e) Resolution 2325. UN Doc. S/RES/2325. UN Security Council (2016f) Third report of the Organization for the Prohibition of Chemical Weapons-United Nations Joint Investigative Mechanism. UN Doc. S/2016/738. UN Security Council (2017a) Letter dated 28 April 2017 from the Secretary-General addressed to the President of the Security Council. Progress in the elimination of the Syrian chemical weapons programme. UN Doc. S/2017/373. UN Security Council (2017b) Seventh report of the Organization for the Prohibition of Chemical Weapons-United Nations Joint Investigative Mechanism. UN Doc. S/2017/904. Werle G (2009) Principles of International Criminal Law, 2nd edn. T.M.C. Asser Press, The Hague. Yamada O (1950) Materials on the Trial of Former Servicemen of the Japanese Army Charged with Manufacturing and Employing Bacteriological Weapons. Foreign Languages Publishing House, Moscow.

Dr. Yasmin Naqvi serves as Legal Officer in the Immediate Office of the Registrar of the UN International Residual Mechanism for Criminal Tribunals, The Hague, the Netherlands. Dr. Naqvi holds a Ph.D. and a Master’s degree in Public International Law from the Graduate Institute of International Studies, Geneva, and BA and LLB (Honours) degrees from the University of Tasmania, Australia. Dr. Olufemi Elias was a Director and Legal Adviser at the Organisation for the Prohibition of Chemical Weapons.

Chapter 6

Automatic Criminal Liability for Unlawful Confinement (Imprisonment) as a War Crime? A Potential Consequence of Denying Non-State Armed Groups the Power to Detain in NIACs Manuel J. Ventura

Contents 6.1 Introduction........................................................................................................................ 6.2 Unlawful Confinement (Imprisonment) as a War Crime in Non-international Armed Conflicts............................................................................................................................. 6.2.1 Contextual Requirements........................................................................................ 6.2.2 Underlying Offence ................................................................................................ 6.3 Automatic International Criminal Liability for Unlawful Confinement (Imprisonment) as a War Crime?................................................................................................................ 6.3.1 Contextual Requirements........................................................................................ 6.3.2 Underlying Crime of Unlawful Confinement (Imprisonment) .............................. 6.4 Conclusion: A Disincentive for Non-State Armed Groups to Respect Standards of Detention ....................................................................................................................... References ..................................................................................................................................

150 152 152 153 161 161 162 163 167

LL.M (Hons) (Geneva Academy of International Humanitarian Law and Human Rights). Associate Legal Officer, Office of the Prosecutor, International Residual Mechanism for Criminal Tribunals, Arusha, Tanzania; Director, The Peace and Justice Initiative (www. peaceandjusticeinitiative.org); Adjunct Fellow, School of Law, Western Sydney University. The views expressed herein are those of the author alone and do not necessarily reflect the views of the International Residual Mechanism for Criminal Tribunals or the United Nations in general. M. J. Ventura (&) International Residual Mechanism for Criminal Tribunals, Arusha, Tanzania e-mail: [email protected] M. J. Ventura School of Law, Western Sydney University, Sydney, Australia © T.M.C. ASSER PRESS and the authors 2020 E. Heffes et al. (eds.), International Humanitarian Law and Non-State Actors, https://doi.org/10.1007/978-94-6265-339-9_6

149

150

M. J. Ventura

Abstract The question of whether international humanitarian law (IHL) provides for the power of detention to Parties in a non-international armed conflict (NIAC) has been, of late, highly contentious. Whilst many have opined on this issue, most have reflected upon it purely from within the prism of IHL. This chapter takes a different approach. After identifying the interwoven nature of IHL and war crimes, it considers the issue from the perspective of international criminal law (ICL). It submits that if IHL does not provide for a power of detention in NIACs, then non-State armed groups (NSAGs) that engage in such conduct will most likely commit the war crime of unlawful confinement (imprisonment) as a violation of the laws and customs of war and simultaneously violate domestic criminal law. This has profound consequences. One of the incentives that NSAGs have to follow IHL is the possibility that, if they abide by its principles, they will not stand liable for war crimes. Further, IHL actively encourages the provision of amnesties to members of NSAGs at the end of the NIAC, but this can only extend to domestic crimes and not to war crimes. It is submitted that a situation whereby ICL liability is but a foregone conclusion for the mere act of detention – where no reprieve in the form of an amnesty is available – has a potentially negative effect on the incentive for NSAGs to abide by IHL standards when it comes to how detention is carried out. This should be kept in mind when considering the question of whether IHL provides for an authority to detain in NIACs.




Keywords Non-State armed groups detention in non-international armed conflicts power to detain violation of the laws and customs of war war crimes amnesty for war crimes incentive to abide by international humanitarian law standards of detention




6.1
















Introduction

On 2 May 2014, Judge Leggatt of the England and Wales High Court of Justice (Queen’s Bench Division) handed down the first instance judgment in Mohammed v. Ministry of Defence. This judgment triggered an avalanche of legal commentary and analysis from the international humanitarian law (IHL) community due to one very specific finding of law: that the United Kingdom (UK) and its soldiers did not have the power to detain under IHL in a non-international armed conflict (NIAC).1 That finding was relevant because the claimant’s case was that he had been detained without a legal basis from 7 April 2010 until 25 July 2010 (i.e. 110 days) by UK armed forces engaged in a NIAC in Afghanistan. One of the UK’s arguments had been that its detention of the claimant was lawful under international law, namely, IHL – a position that was rejected. The finding that IHL does not authorize parties 1 See UK – England and Wales High Court of Justice, Serdar Mohammed v. Ministry of Defence; Qasim and Others v. Secretary of State for Defence, 2 May 2014, EWHC 1369 (QB), paras 228– 268.

6 Automatic Criminal Liability for Unlawful Confinement …

151

engaged in a NIAC to detain was subsequently upheld by a unanimous England and Wales Court of Appeal (Civil Division)2 and also upheld by some of the judges of the UK Supreme Court.3 Since then, much has been written on this subject. The marketplace of ideas is, by now, thoroughly saturated with various viewpoints and commentaries on the issue.4 One would be hard pressed to come up with something genuinely new to add to the IHL debate. Thus, the objective of this chapter is not to engage on the substantive legal question of whether IHL in NIACs authorizes participants to detain (or not).5 Rather, this chapter seeks to look at the issue from a different, and relatively unexplored, angle: the intersect between IHL and international criminal law (ICL).6 Indeed, while IHL is a distinct area of public international law, it also provides the underlying basis for one core international crime: war crimes. War crimes are but the mere penalization of particular IHL violations so that natural persons can be held individually criminally liable, and punished, for their breach (as opposed to simply triggering the international responsibility of the relevant State). That is why it is axiomatic to say that all war crimes are (grave) violations of IHL. And it is at this point that ICL can be brought to bear on the question of detention in NIACs under IHL – particularly when one considers that unlawful confinement (imprisonment) is a war crime in NIACs (as a violation of the laws and customs of war). This chapter seeks to bring to light and explore the following point: if it is true that IHL does not provide for a power of detention to parties in a NIAC, then members of a non-State armed group (NSAG) that do detain will most likely be guilty of unlawful confinement (imprisonment) as a war crime (violation of the laws and customs of war). This is because a NSAG would never have the authority to detain under domestic law and, likewise, would not be able to detain under IHL. On the other hand, a State fighting against the NSAG within its own territory would always have the authority to detain under that State’s domestic law, even if it cannot detain on the basis of IHL. It is submitted that this anomaly has a potentially negative knock on effect on the incentive of NSAGs to follow IHL standards on how detention is to be 2 See UK – England and Wales Court of Appeal (Civil Division), Serdar Mohammed and Others v. Secretary of State for Defence; Rahmatullah and Others v. Ministry of Defence and Foreign and Commonwealth Office, 30 July 2015, EWCA Civ 843, paras 164–253. 3 See UK Supreme Court, Al-Waheed v. Ministry of Defence; Serdar Mohammed v. Ministry of Defence, 17 January 2017, UKSC 2, paras 243–276 (per Lord Reed (dissenting) (Lord Kerr agreeing)); see also paras 8–17 (per Lord Sumption (but finding it unnecessary to reach a definitive view on this issue) (Lady Hale agreeing); 147–148 (per Lord Mance (also finding it unnecessary to decide the issue)). 4 See, among others, Goodman 2009; Casalin 2011; van Amstel 2012; Debuf 2013; ICRC 2014; Mačák 2015; Heffes 2015; Rona 2015; Aughey and Sari 2015; Goodman 2015; Hill-Cawthorne 2016; Murray 2017; Clapham 2017. 5 On this, see Mégret, Chap. 7 in this volume, discussing whether IHL and international human rights law provide a legal basis for NSAGs’ detentions. 6 One academic that has explored this ICL angle is Professor Andrew Clapham (see Clapham 2017), although this chapter will show that his analysis is incomplete.

152

M. J. Ventura

carried out, particularly if they are criminally liable under ICL for the mere act of detention alone. To be clear, this chapter takes no position on the substantive question at the heart of the present debate. It assumes – rightly or wrongly – that NSAGs (and States) do not have the power to detain under IHL in NIACs. It merely considers and analyses the legal and practical consequences of that position.

6.2 6.2.1

Unlawful Confinement (Imprisonment) as a War Crime in Non-international Armed Conflicts Contextual Requirements

The general contextual requirements for war crimes in NIACs consist of the existence of an armed conflict, a nexus between the underlying offence and the armed conflict, and knowledge of the existence of the armed conflict. The classic definition of a NIAC is found in Tadić: ‘an armed conflict exists whenever there is … protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’.7 The notion of ‘protracted armed violence’ refers ‘more to the intensity of the armed violence than its duration’.8 Although the NSAGs in question ‘do not necessarily need to be as organised as the armed forces of a State, some degree of organisation is necessary’.9 In order to demonstrate the requisite nexus, it is necessary for the conduct to be shaped by, or be dependent on, the armed conflict.10 As the International Criminal Tribunal for the former Yugoslavia (ICTY) has stated: [t]he armed conflict need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed.’11

7 ICTY, Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, IT-94-1-AR72 (Tadić), para 70; ICTY, Prosecutor v. Boškoski and Tarčulovski, Appeal Judgement, 19 May 2010, IT-04-82-A (Boškoski and Tarčulovski 2010), para 21. 8 ICTY, Prosecutor v. Haradinaj et al., Trial Judgement, 3 April 2008, IT-04-84-T (Haradinaj et al.), para 49. See also ICTY, Prosecutor v. Tadić, Trial Judgment, 7 May 1997, IT-94-1-T, para 562; ICTY, Prosecutor v. Kordić and Čerkez, Appeal Judgment, 17 December 2004, IT-95-14 (Kordić and Čerkez), para 341; Boškoski and Tarčulovski 2010, above n. 7, paras 21–24. 9 ICTY, Prosecutor v. Orić, Trial Judgment, 30 June 2006, IT-03-68-T (Orić), para 254. See also ICTY, Prosecutor v. Limaj et al., Trial Judgment, 30 November 2005, IT-03-66-T (Limaj et al.), para 89; Haradinaj et al., above n. 8, paras 50–60. 10 ICTY, Prosecutor v. Kunarac et al., Appeal Judgement, 12 June 2002, IT-96-23 & IT- 96-23/ 1-A (Kunarac et al.), para 58. 11 Kunarac et al., above n. 10, para 58. See also Tadić, above n. 7, para 70; ICTY, Prosecutor v. Stakić, Appeal Judgment, 22 March 2006, IT-97-24-A, para 342.

6 Automatic Criminal Liability for Unlawful Confinement …

153

Lastly, ‘[t]he principle of individual guilt … demands sufficient awareness of factual circumstances establishing the armed conflict and its (international or internal) character’.12 However, knowledge of the correct legal classification of the armed conflict is not necessary.13

6.2.2

Underlying Offence

6.2.2.1

A Violation of the Laws and Customs of War

The Rome Statute of the International Criminal Court (Rome Statute) (1998) criminalizes the grave breaches regime of the Geneva Conventions (1949) which includes ‘unlawful confinement’.14 But that regime only applies in international armed conflicts (IACs) and no equivalent crime is found in the provisions related to NIACs in the Rome Statute (1998) (specifically, Article 8(2)(c) (serious violations of Common Article 3 of the Geneva Convention) and Article 8(2)(e) (other serious violations of the laws and customs applicable in NIACs)). Similarly, other international criminal or regional tribunals that had, have or will have jurisdiction over grave breaches of the Geneva Conventions – namely, the ICTY, the Extraordinary Chambers in the Courts of Cambodia (ECCC), the Kosovo Specialists Chambers (KSC), the African Court of Justice and Human Rights (ACJHR) and the Extraordinary African Chambers (EAC) – include ‘unlawful confinement of a civilian’ or ‘unlawful confinement’ as a war crime in IACs.15 But to date, no international or regional criminal tribunal has explicitly included unlawful confinement (imprisonment) as a war crime in NIACs – either as a violation of the law or customs of war,16 a violation of Common Article 3 of the Geneva

12

ICTY, Prosecutor v. Naletilić and Martinović, Appeal Judgment, 3 May 2006, IT-98-34-A (Naletilić and Martinović), para 119. See also ICTY, Prosecutor v. Limaj et al., Appeal Judgment, 27 September 2007, IT-03-66-A, para 21. 13 Kordić and Čerkez, above n. 8, para 311; Naletilić and Martinović, above n. 12, para 119. 14 See Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3, entered into force 1 July 2002 (ICC Statute), Article 8(2)(a)(vii). 15 See Statute of the International Criminal Tribunal for the former Yugoslavia, 25 May 1993 (ICTY Statute), Article 2(g) (‘unlawful confinement of a civilian’); Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia, 27 October 2004 (ECCC Law), Article 6 (‘unlawful confinement of a civilian’); Kosovo Law on Specialist Chambers and Specialist Prosecutor’s Office, 3 August 2015 (KSC Law) Article 14(1)(a)(vii) (‘unlawful confinement’); Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, opened for signature 27 June 2014, not yet entered into force (Malabo Protocol), Article 28D(a)(vii) (‘unlawful confinement’); Statute of the Extraordinary African Chambers, 22 August 2012 (EAC Statute), Article 7(1)(f) (‘unlawful confinement’). 16 See ICTY Statute, above n. 15, Article 3; KSC Law, above n. 15, Article 14(1)(d) (violations of the laws and customs of war in NIACs); Malabo Protocol, above n. 15, Article 28D(e) (violations of the laws and customs of war in NIACs).

154

M. J. Ventura

Conventions17 and Additional Protocol II of the Geneva Conventions (1977) (AP II)18 nor a violation of international humanitarian law.19 On its face, this suggests that unlawful confinement (imprisonment) is not a war crime in a NIAC. Yet, such a conclusion would be far too simplistic. Indeed, the fact that it is not explicitly listed is not determinative of whether it is (or not) a war crime in a NIAC under customary international law. Indeed, the ICTY has, on numerous occasions, convicted individuals for violations of the laws and customs of war when the relevant underlying offences were not explicitly listed in Article 3 of the ICTY Statute, including, inter alia, murder,20 rape,21 attacks on civilians,22 cruel treatment,23 attacks on civilian objects,24 and the infliction of terror upon the civilian population.25 In all these examples, the four ‘Tadić conditions’ were considered and applied to determine whether or not the relevant acts constituted violations of the laws and customs of war which were punishable as war crimes. These conditions are that: (i) the violation must constitute an infringement of a rule of international humanitarian law; (ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met …;

17

See KSC Law, above n. 15, Article 14(1)(c); Malabo Protocol, above n. 15, Article 28D(c). See Statute of the International Criminal Tribunal for Rwanda, 8 November 1994 (ICTR Statute), Article 4; Statute of the Special Court for Sierra Leone, 16 January 2012 (SCSL Statute), Article 3; EAC Statute, above n. 15, Article 7(2). 19 See SCSL Statute, above n. 18, Article 4. 20 See ICTY, Prosecutor v. Strugar, Trial Judgment, 31 January 2005, IT-01-42-T (Strugar), para 219; ICTY, Prosecutor v. Halilović, Trial Judgment, 16 November 2005, IT-01-48-T, paras 30– 31; ICTY, Prosecutor v. Hadžihasanović and Kubura, Trial Judgment, 15 March 2006 (Hadžihasanović and Kubura), IT-01-47-T, para 29; Orić, above n. 9, para 261; ICTY, Prosecutor v. Martić, Trial Judgment, 12 June 2007, IT-95-11-T (Martić), paras 44–45; ICTY, Prosecutor v. Mrkšić et al., Trial Judgment, 27 September 2007, IT-95-13/1-T (Mrkšić et al.), paras 425–426; ICTY, Prosecutor v. Delić, Trial Judgment, 15 September 2008, IT-04-83-T (Delić), para 43; ICTY, Prosecutor v. Đorđević, Trial Judgment, 23 February 2011, IT-05-87/1-T (Đorđević), para 1529; ICTY, Prosecutor v. Gotovina et al., Trial Judgment, 15 April 2011, IT-06-90-T (Gotovina et al.), para 1671; ICTY, Prosecutor v. Stanišić and Simatović, Trial Judgment, 30 May 2013, IT-03-69-T, para 951. 21 See Kunarac et al., above n. 10, paras 194–195; Haradinaj et al., above n. 8, para 35. 22 See Strugar, above n. 20, paras 220–222; ICTY, Prosecutor v. Galić, Trial Judgment, 5 December 2003, IT-98-29-T (Galić), paras 13–32; Martić, above n. 20, paras 44–45. 23 See Strugar, above n. 20, para 219; Hadžihasanović and Kubura, above n. 20, para 29; Orić, above n. 9, para 261; Martić, above n. 20, paras 44–45; Mrkšić et al., above n. 20, paras 425–426; Delić, above n. 20, para 43; Gotovina et al., above n. 20, para 1671. 24 See Strugar, above n. 20, paras 223–226. 25 See Galić, above n. 22, paras 94–138. See also ICTY, Prosecutor v. Galić, Appeal Judgment, 30 November 2006, IT-98-29-A, paras 87–98 (finding that the prohibition of terror against the civilian population was prohibited and criminalized under customary international law); ICTY, Prosecutor v. D. Milošević, Trial Judgment, 12 December 2007, IT-98-29/1-T, para 870. 18

6 Automatic Criminal Liability for Unlawful Confinement …

155

(iii) the violation must be ‘serious’, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim …; (iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.26 When applying these conditions to the question at hand, it becomes clear that the prohibition of unlawful confinement (imprisonment) is as much a war crime in a NIAC as it is in an IAC under customary international law. It would be beyond the scope of this chapter to undertake a comprehensive analysis of each of the aforementioned Tadić conditions, particularly with respect to national and international practice. But in this instance, it is not strictly necessary since much of the work has already been undertaken by the International Committee of the Red Cross (ICRC) in its seminal Study on Customary IHL. After considering extensive material, that study concluded, in Rule 99 (‘Arbitrary deprivation of liberty is prohibited’), that ‘State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts’.27 Importantly, it also noted ‘that common Article 3 of the Geneva Conventions, as well as both Additional Protocols I and II, require that all civilians and persons hors de combat be treated humanely …, whereas arbitrary deprivation of liberty is not compatible with this requirement.’28 In other words, unlawful confinement (imprisonment) can be considered as subsumed within Common Article 3(1) of the Geneva Conventions29 and Article 4(1) of Additional Protocol II (1977),30 which are both applicable in NIACs. This is sufficient to satisfy the first two Tadić conditions outlined above.

26

Tadić, above n. 7, para 94. Henckaerts and Doswald-Beck 2009, p 344 (emphasis added). For the practice underlying this rule, see Henckaerts and Doswald-Beck 2005, pp 2328–2344, paras 2516–2662. 28 Henckaerts and Doswald-Beck 2009, p 344. 29 Common Article 3(1) of the Geneva Conventions provides that: 27

Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. The ICRC has opined that ‘[h]umane treatment of persons protected by common Article 3 is not merely a recommendation or a moral appeal … it is an obligation of the Parties to the conflict under international law’. ICRC 2016, para 552; ICRC 2017, para 574. 30 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 609, entered into force 7 December 1978 (AP II), Article 4(1) provides that: All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors.

156

M. J. Ventura

Further, the fact that unlawful confinement is explicitly included as a ‘grave’ breach of the Geneva Conventions31 goes a long way to satisfying the third Tadić condition. This is a clear indication from States that such actions breach important values (in this case, the right to liberty) as well as the grave consequences for the victim. After all, it is hard to fathom how unlawful confinement would not be considered as ‘grave’ merely because it is carried out in a NIAC rather than in an IAC. The practical consequences for the victims are exactly the same, except for the context in which the acts are committed. There can be little reason to doubt that the consequences of unlawful confinement are not altered based on the classification of the armed conflict. As the ICTY in Tadić rightly put it, ‘[w]hat is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife’.32 With respect to the last Tadić condition, this is satisfied by virtue of the ICRC’s position that unlawful confinement can be subsumed within Common Article 3(1) of the Geneva Conventions. In this respect, the ICTY has held that ‘customary international law imposes criminal liability for serious violations of common Article 3’33 and, further, that ‘serious violations thereof [of Common Article 3] would at once satisfy the four [Tadić] requirements’.34 Additionally, the ICRC’s customary IHL study states that ‘more than 70 [States] were found to criminalise unlawful deprivation of liberty during armed conflict’, that ‘[m]ost of this legislation applies the prohibition of unlawful deprivation of liberty to both international and non-international armed conflicts’ and that ‘[s]everal military manuals which are applicable in or have been applied in non-international armed conflicts also prohibit

31 See ICC Statute, above n. 14, Article 8(2)(a)(vii); ICTY Statute, above n. 15, Article 2(g); ECCC Law, above n. 15, Article 6; KSC Law, above n. 15, Article 14(1)(a)(vii); Malabo Protocol, above n. 15, Article 28D(a)(vii); EAC Statute, above n. 15, Article 7(1)(f). 32 Tadić, above n. 7, para 119 (in the context of weapons). 33 Tadić, above n. 7, para 94. See also ICTY, Prosecutor v. Delalić et al., Appeal Judgment, 20 February 2001, IT-96-21-A (Delalić et al.), paras 153–174; Limaj et al., above n. 9, para 176; Mrkšić et al., above n. 20, para 426; Haradinaj et al., above n. 8, para 34; ICTY, Prosecutor v. Boškoski and Tarčulovski, Trial Judgment, 10 July 2008, IT-04-82-T (Boškoski and Tarčulovski 2008), para 299; Đorđević, above n. 20, para 1529. 34 Kunarac et al., above n. 10, para 68. See also Limaj et al., above n. 9, para 176; Martić, above n. 20, para 45; Mrkšić et al., above n. 20, para 426; Boškoski and Tarčulovski 2008, above n. 33, para 299; Delić, above n. 20, para 43; ICTY, Prosecutor v. Lukić and Lukić, Trial Judgment, 20 July 2009, IT-98-32/1-T, para 869; ICTY, Prosecutor v. Popović et al., Trial Judgment, 10 June 2010, IT-05-88-T, para 746; Đorđević, above n. 20, para 1529; ICTY, Prosecutor v. Perišić, Trial Judgment, 6 September 2011, IT-04-81-T, para 76; ICTY, Prosecutor v. Tolimir, Trial Judgment, 12 December 2012, IT-05-88/2-T, para 684.

6 Automatic Criminal Liability for Unlawful Confinement …

157

unlawful deprivation of liberty.’35 Since 2005, when the ICRC study was first published, this State practice has only increased in number.36 And so, based on the above analysis, it is submitted that unlawful confinement (imprisonment) satisfies the aforementioned four Tadić conditions and, accordingly, is a war crime in a NIAC. Despite the fact that it is not explicitly included in the statutes of current tribunals/courts with jurisdiction ratione materiae over war crimes, its status as such is established on the basis of customary international law (as a violation of the laws and customs of war). This position accords with the views of scholars.37 Persons who carry out such acts in a NIAC can be prosecuted for a war crime.

6.2.2.2

Elements of the Underlying Offence

The legal ingredients of the underlying war crime of unlawful confinement in a NIAC are ‘identical to that for imprisonment as a crime against humanity’.38 This notion – that underlying crimes contain the same elements regardless of whether they are classified as a war crime or crime against humanity (or even genocide) – is not novel. As Boas, Bischoff and Reid explain: several international crimes have common underlying offences. That is, the elements of the underlying offence are constant, and what distinguishes one international crime from another are the general or specific requirements that characterise the core categories of international crimes, or certain subcategories of crimes.39

Therefore, we must look to the underlying crime of imprisonment as a crime against humanity in order to identify the legal elements of the underlying offence. Article 7(1)(e) of the Rome Statute (1998) criminalizes ‘[i]mprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law’ as a crime against humanity. While the ICC has issued arrest warrants for various individuals, alleging that they (in concert with others) committed this crime, at the time of writing, they are either yet to be arrested40 or are in the ICC’s 35

Henckaerts and Doswald-Beck 2009, p 347. See ICRC n.d. Customary IHL Database, Practice Relating to Rule 99: Deprivation of Liberty. 37 See Boas et al. 2008, p 287 (‘[t]he underlying offence for unlawful confinement … is punishable as a grave breach under Article 2 of the ICTY Statute and a violation of the laws or customs of war under the residual jurisdiction of Article 3 of that Statute); and p 409 (where the authors outline the elements of unlawful confinement as a violation of the laws or customs of war). 38 Ibid., p 287. 39 Ibid., p 390. 40 See ICC, Prosecutor v. Harun and Kushayb, Decision on the Prosecution Application under Article 58(7) of the Statute, 27 April 2007, ICC-02/05-01/07-1-Corr, paras 74–75, disposition; ICC, Prosecutor v. Hussein, Public Redacted Version of ‘Decision on the Prosecutor’s Application under Article 58 Relating to Abdel Raheem Muhammad Hussein’, 1 March 2012, ICC-02/05-01/ 12-1-Red, para 13(vii), disposition; ICC, Prosecutor v. Khaled, Warrant of Arrest for Al-Tuhamy Mohamed Khaled, 18 April 2013, ICC-01/11-01-13-1, para 8, disposition. 36

158

M. J. Ventura

custody but have not yet gone on trial.41 Nonetheless, in its decision authorizing the Prosecutor to initiate a proprio motu investigation concerning the situation in Burundi, ICC Pre-Trial Chamber III discussed what it understood to be the legal requirements of this crime. It held that the underlying crime required the ‘unlawful captivity of a person in an enclosed environment’ or the ‘unlawful restriction of [a] person’s movements to a specific area’.42 Further, and more importantly, the crime also required ‘the person [to] have been deprived of his or her physical liberty without due process of law’, with two examples being cited in this respect: where ‘there is no legal basis to detain a person or the person is denied any procedural rights’.43 ICC Pre-Trial Chamber III went on to state that, on the material before it, it was reasonable to conclude that ‘individuals were detained without any legal basis … [and] arrests at times were carried out by persons who did not have legal authority to arrest’.44 Similarly, the ICTY, the International Criminal Tribunal for Rwanda (ICTR) and the ECCC all included imprisonment as crime against humanity within their respective statutes/establishment law.45 Unlike the ICC (so far), they successfully prosecuted individuals for this offence.46 The first case to consider this crime was the ICTY’s Kordić and Čerkez Trial Judgment. It held that its underlying elements were identical to that of ‘unlawful confinement of a civilian’ as a grave breach of the Geneva Conventions and should be ‘understood as arbitrary imprisonment [and] the deprivation of liberty of the individual without due process of law’, which, in turn, required a ‘determin[ation] [of] the legality of imprisonment as well as the procedural safeguards pertaining to the subsequent imprisonment of the person or group of persons in question’.47 The next case, the ICTY’s Krnojelac Trial Judgment, agreed with the Kordić and Čerkez Trial Judgment’s definition but disagreed with the wholesale

See ICC, Prosecutor v. Yekatom, Public Redacted Version of ‘Warrant of Arrest for Alfred Yekatom’ ICC-01/14-01/18-1-US-Exp 11 November 2018, 17 November 2018, ICC-01/14-01/ 18-1-Red, paras 10, 18(c), disposition; ICC, Prosecutor v. Ngaïssona, Public Redacted Version of ‘Warrant of Arrest for Patrice-Edouard Ngaïssona’, 13 December 2018, ICC-01/14-02/18-2-Red, paras 10, 16(c) (Bangui Area), 16(b) (Bossangoa), 16(c) (Yakolé), 16(b) (Bossemptélé), 16(b) (Boda), 16(b) (Carnot), 16(b) (Berberati), disposition. 42 ICC, Situation in the Republic of Burundi, Public Redacted Version of ‘Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Burundi’, 9 November 2017, ICC-01/17-X-9-US-Exp, para 68. 43 Ibid., para 68 (emphasis added). 44 Ibid., para 89. 45 See ICTY Statute, above n. 15, Article 5(e) (‘imprisonment’); ICTR Statute, above n. 18, Article 3(e) (‘imprisonment’); ECCC Law, above n. 15, Article 5 (‘imprisonment’). 46 Other international/regional criminal tribunals and courts also include this crime in their respective founding documents but did not, or have yet to, prosecute individuals for it: see SCSL Statute, above n. 18, Article 2(e); KSC Law, above n. 15, Article 13(e); Malabo Protocol, above n. 15, Article 28C(1)(e). 47 ICTY, Prosecutor v. Kordić and Čerkez, Trial Judgment, 26 February 2001, IT-95-14/2-T, paras 302–303 (emphasis added). 41

6 Automatic Criminal Liability for Unlawful Confinement …

159

application of the elements of unlawful confinement as a grave breach of the Geneva Conventions (since the Geneva Conventions only apply in war time but crimes against humanity need not occur in war).48 It further held ‘that any form of arbitrary physical deprivation of liberty of an individual may constitute imprisonment’; that ‘the deprivation of an individual’s liberty is arbitrary if it is imposed without due process of law’; and that the ‘deprivation of an individual’s liberty will be arbitrary and, therefore, unlawful if no legal basis can be called upon to justify the initial deprivation of liberty’.49 The Krnojelac Trial Judgment outlined the following elements of the offence (excluding the contextual element): 1. An individual is deprived of his or her liberty. 2. The deprivation of liberty is imposed arbitrarily, that is, no legal basis can be invoked to justify the deprivation of liberty. 3. The act or omission by which the individual is deprived of his or her physical liberty is performed by the accused or a person or persons for whom the accused bears criminal responsibility with the intent to deprive the individual arbitrarily of his or her physical liberty or in the reasonable knowledge that his act or omission is likely to cause arbitrary deprivation of physical liberty.50 The Kordić and Čerkez Appeal Judgment, like the Krnojelac Trial Judgment, agreed with the Kordić and Čerkez Trial Judgment’s basic definition, but disagreed, to an extent, with its invocation of the Geneva Conventions. It rightly pointed out that the existence of an armed conflict was not necessary for crimes against humanity.51 Subsequently, the Martić Trial Judgment, citing to the Kordić and Čerkez Appeal Judgment, defined unlawful imprisonment as ‘arbitrary imprisonment, that is the deprivation of liberty of an individual without due process of law.’52 The ICTR generally followed the approach of the ICTY. Thus, the Ntagerura Trial Judgment held that imprisonment as a crime against humanity ‘refers to arbitrary or otherwise unlawful detention or deprivation of liberty’.53 By citing the

48

ICTY, Prosecutor v. Krnojelac, Trial Judgment, IT-97-25-T, 15 March 2002, para 111. Ibid., paras 112–114 (emphasis added). The legal elements of imprisonment as a crime against humanity were not raised on appeal in this case. 50 Ibid., para 115 (emphasis added). It is also worth noting that in a footnote to this paragraph the Trial Chamber stated that arbitrary imprisonment ‘may further result from an otherwise justified deprivation of physical liberty if the deprivation is being administered under serious disregard of fundamental procedural rights of the person deprived of his or her liberty as provided for under international law.’ 51 Kordić and Čerkez, above n. 8, paras 115–116. 52 Martić, above n. 20, para 87 (the Prosecution dropped its imprisonment-related arguments on appeal: ICTY, Prosecutor v. Martić, Prosecution’s Notice of Partial Withdrawal of Parts III and IV of Prosecution’s Notice of Appeal, 25 September 2007, IT-95-11-A). 53 ICTR, Prosecutor v. Ntagerura et al., Trial Judgment, 25 February 2004, ICTR-99-46-T, para 702. 49

160

M. J. Ventura

Krnojelac and Kordić and Čerkez Appeal Judgments, it held that one could take into account ‘whether the initial arrest was lawful, by considering, for example, whether it was based on a valid warrant of arrest, whether the detainees were informed of the reasons for their detention, whether the detainees were ever formally charged, and whether they were informed of any procedural rights.’54 However, the Ntagerura Trial Judgment appeared to differ from the Krnojelac Trial Judgment in that it held that ‘[i]t is not every minor infringement of liberty that forms the material element of imprisonment as a crime against humanity’; only imprisonment that is ‘of similar gravity and seriousness as the other crimes enumerated as crimes against humanity’ would suffice.55 For its part, the ECCC repeated the Ntagerura Trial Judgment’s basic definition of imprisonment verbatim and, citing the Krnojelac Trial Judgment, found that ‘[a]n initial deprivation of liberty will be arbitrary if no legal basis exists to justify it’.56 It also sided with the Ntagerura Trial Judgment by finding that only deprivations of liberty that are similarly grave and serious as the enumerated underlying crimes against humanity constitute imprisonment as a crime against humanity.57 Finally, it is worth pointing out that the ICTY has held that unlawful confinement as a grave breach of the Geneva Conventions requires more than mere participation in a system of confinement. As the ICTY Appeals Chamber in Delalić et al. put it: the fact alone of a role in some capacity, however junior, in maintaining a prison in which civilians are unlawfully detained is an inadequate basis on which to find primary criminal responsibility of the nature which is denoted by a finding that someone has committed a crime. Such responsibility is more properly allocated to those who are responsible for the detention in a more direct or complete sense, such as those who actually place an accused in detention without reasonable grounds … or who, having some powers over the place of detention, accepts a civilian into detention without knowing that such grounds exist; or who, having power or authority to release detainees, fails to do so despite knowledge that no reasonable grounds for their detention exist, or that any such reasons have ceased to exist.58

Although, strictly speaking, this pronouncement only applies to unlawful confinement (imprisonment) committed in an IAC, there is little reason to doubt that its rationale should also apply when committed in a NIAC.

54

Ibid. Ibid. 56 ECCC, Co-Prosecutors v. Kaing et al., Trial Judgment, 26 July 2010, 001/18-07-2007/ECCC/ TC-E188, paras 347–348. 57 Ibid., para 349, fn 637. The Trial Chamber’s definition of imprisonment as a crime against humanity was not put to the Supreme Court Chamber on appeal and thus it ‘refrain[ed] … from reviewing whether or not the[y] … [we]re correct as a matter of law’: ECCC, Co-Prosecutors v. Kaing et al., Appeal Judgment, 3 February 2012, 001/18-07-2007-ECCC/SC-F28, fn 733. 58 Delalić et al., above n. 33, para 342. 55

6 Automatic Criminal Liability for Unlawful Confinement …

6.3

161

Automatic International Criminal Liability for Unlawful Confinement (Imprisonment) as a War Crime?

Having outlined both the contextual requirements and the elements of the underlying offence of unlawful confinement (imprisonment) as a war crime in NIACs, we shall now consider how these principles would actually apply when NSAGs detain in a NIAC. Indeed, as the ICRC has openly acknowledged, ‘[d]etention is a regular occurrence in both international and non-international armed conflicts and is practiced by State and non-State Parties alike’.59 It is submitted that the result is that members of NSAGs who detain will most likely stand to be held guilty of an international offence.

6.3.1

Contextual Requirements

As noted earlier, war crimes require the existence of an armed conflict. The present scenario presumes the existence of a NIAC in which at least one of the parties is always a NSAG. Thus, we can be safely assured that this contextual requirement is met. Concerning the level of organisation required, any NSAG that has the capacity to detain individuals for a sustained length of time (i.e. not mere detainment at a checkpoint and the like) must inherently possess a certain level of organisation in order to do so. Indeed, sustained detention ideally requires a number of matters to be addressed including, inter alia, the provision of detention facilities, the guarding of detained persons to prevent their escape and the preparation and delivery of food and water. All of these require a NSAG to put into place processes and procedures and to have mechanisms in place to ensure that they are followed. Were a NSAG of this kind to be actively engaged in hostilities, then it is submitted that such a NSAG would be sufficiently organised for the purposes of the definition of a NIAC. This is not to say that NSAGs that do not have the organization necessary to properly undertake sustained detention cannot be organized enough to participate in a NIAC. Rather, those NSAGs that can carry out such detention meet – and go above and beyond – the requisite level of organization to participate in a NIAC. Furthermore, detention carried out by a NSAG in the midst of a NIAC would be sufficiently connected to the armed conflict so as to satisfy the nexus requirement. After all, the NSAG’s mere existence is usually linked to a NIAC. Additionally, the detention by a NSAG of military personnel of a State or of members of other NSAGs would not have taken place but for the fact that they are adversaries in a NIAC. The detention of civilians for reasons related the armed conflict would also be linked to the NIAC: it is the situation of armed conflict and the breakdown of

59

ICRC 2016, para 717; ICRC 2017, para 739.

162

M. J. Ventura

State authority, that has permitted or facilitated the detention.60 Thus, the NIAC would play a substantial part in the NSAG’s ability to detain, and the NSAG’s choice of who to detain and when would be influenced by the armed conflict. In short, detention by a NSAG would be shaped, or be dependent on, the armed conflict. Finally, most members of a NSAG that are engaged in the detention would be acutely aware of the factual circumstances of the armed conflict (i.e. aware of the fact that are participating an armed struggle against a State or another NSAG), even if they may not realize or appreciate the legal distinction between an IAC and a NIAC (which, in any event is not a requirement – knowledge of the correct legal characterization of the armed conflict is unnecessary).

6.3.2

Underlying Crime of Unlawful Confinement (Imprisonment)

When we consider detention carried out by persons in a NSAG who are responsible for the detention in a direct sense and with intent (i.e. the intent to deprive persons of their liberty), accepting the position that IHL does not provide for a power of detention to parties in a NIAC has significant consequences vis-à-vis ICL. As demonstrated above, the cornerstone of both unlawful detention as a war crime and imprisonment as a crime against humanity is the requirement that it be undertaken without a legal basis and thus arbitrary. In other words, the key issue is the legality of the detention. Here, if we accept that IHL does not provide for detention authority, both NSAGs and a State that detain in a NIAC will have no legal basis for such actions under IHL. So, on its face, such detention will be arbitrary (at least under international law61). However, a State can always rely on domestic law as a legal basis for detention in a NIAC. Indeed, it is a reflection of a State’s sovereignty that it has the power to deprive persons of their liberty, provided that due process is exercised.62 Every State has such an authority. In contrast, a NSAG will not have this possibility. Its mere existence is in violation of domestic law and its detention of anyone will automatically constitute a violation of domestic criminal law. This is

60 Even the detention of civilians by a NSAG during a NIAC for reasons that are, on their face, unrelated to the NIAC (e.g. detention pursuant to a ‘judicial’ system administered by an advanced NSAG in areas under their control) could perhaps be viewed as sufficiently linked to the NIAC. After all, here too the detention was permitted or facilitated by the breakdown of State authority which resulted directly from the existence of the NIAC. 61 This would not, however, exclude altogether the authority coming from another valid international law source. For instance, such a source could be a Chapter VII resolution of the UN Security Council. But the idea that the UN Security Council would confer such an authority on a NSAG via this means is exceedingly unlikely. 62 It should be noted that due process in this context concerns how the power to detain is exercised and not whether detention is possible in the first place.

6 Automatic Criminal Liability for Unlawful Confinement …

163

understandable. Any State would jealously guard its power of detention under domestic law. Without its express approval and consent (in the form of domestic statutes/legislation or, perhaps, in the form a special agreement with a NSAG) no non-State entity is permitted to deprive persons of their liberty within a State. While a State and a NSAG may not have the power to detain in a NIAC under IHL, a State will nonetheless have the power to detain pursuant to domestic law. And thus, detention undertaken by a State in a NIAC – detention that affords the detained person due process – will not be arbitrary. The legal basis would be domestic law. All other things being equal, there is no danger of falling afoul of the underlying crime of unlawful confinement (imprisonment) as discussed above. In contrast, a NSAG cannot rely on domestic law to get around the proposition that they have no power to detain in a NIAC under IHL. The practical result is that detention by a NSAG will always be arbitrary and without legal basis: they have no authority to detain under international law (IHL) or under domestic law.63 Thus, the key ingredient of the underlying crime of unlawful confinement (imprisonment) as a war crime will, it appears, be automatically satisfied. The seemingly inescapable conclusion is that for members of NSAGs alone, criminal liability will always ensue for the mere act of detention under ICL as a war crime when committed in a NIAC – provided that they do not have a power to detain under IHL (as this chapter assumes).

6.4

Conclusion: A Disincentive for Non-State Armed Groups to Respect Standards of Detention

Given the above, one might well point out that it is hardly uncommon for NSAGs to violate domestic law. They are, in the eyes of the law of their respective State, outlaws and many – if not all – acts they carry out whilst fighting against the State in a NIAC will fall afoul of various provisions of domestic law. So, then, does it matter that they cannot detain in a NIAC under domestic law? At first glance, the situation would be no different to, for example, a NSAG killing members of the armed forces of the State or attacking their military installations – which are all inherent violations of domestic criminal law. However, this masks a crucial point: not all violations of domestic criminal law are simultaneously war crimes. Provided that IHL is followed and the acts of the NSAG do not violate IHL rules, members of NSAGs do not stand to be held liable for war crimes even if their acts did violate domestic criminal law. Additionally, 63

One way to perhaps get out of this conundrum would be in instances where advanced NSAGs have their own ‘legislation’ and operate a ‘legal’ system to administer them in areas under their control. However, even if detention were to be carried out by a NSAG pursuant to such a regime it would be a stretch to say that these constitute a valid ‘legal’ basis for detention. The legality of such detention certainly cannot be sourced from any recognizable source of law, either international or domestic. In any event, NSAGs with this level of sophistication are in the minority.

164

M. J. Ventura

IHL is acutely cognisant of the precarious legal position of NSAGs vis-à-vis domestic law. That is why Article 6(5) of Additional Protocol II provides that, at the end of hostilities, ‘the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained’. This provision has been interpreted as inapplicable where the acts in question amount to international crimes, including war crimes. As the Inter-American Court of Human Rights has explained: this norm is not absolute, because, under international humanitarian law, States also have an obligation to investigate and prosecute war crimes. Consequently, ‘persons suspected or accused of having committed war crimes, or who have been convicted of this’ cannot be covered by an amnesty. Consequently, it may be understood that Article 6(5) of Additional Protocol II refers to extensive amnesties in relation to those who have taken part in the non-international armed conflict or who are deprived of liberty for reasons related to the armed conflict, provided that this does not involve facts … that can be categorized as war crimes[.]64

The ICRC’s Study on Customary IHL – based on extensive practice – aligns with this position: its Rule 159 states that at the end of hostilities States ‘must endeavour to grant the broadest possible amnesty … with the exception of persons suspected of, accused of or sentenced for war crimes’.65 In other words, IHL actively encourages the provision of amnesty at the end of a NIAC, but only to the extent that they do not encompass international crimes. Such an amnesty would, therefore, cover any domestic crimes that are not simultaneously war crimes. Thus, although NSAGs will always violate domestic criminal law by the very fact of their existence, taking up arms against the State and engaging in armed activities, their members can at least hold out the hope that, at the end of the conflict, they could be granted amnesty for their crimes under domestic law. Further, provided that they follow and respect IHL during the NIAC, they will also not stand to be held criminally responsible for international crimes. It is entirely possible for members of NSAGs that comply with IHL to not face any criminal penalty for their participation in the NIAC either under domestic criminal law or ICL. This, it is submitted, is a significant incentive for NSAGs to comply with IHL. But as it concerns unlawful confinement (imprisonment), this incentive is non-existent if NSAGs have no power to detain under IHL. As demonstrated above, they stand to be held liable under ICL, where an amnesty pursuant to Article 6(5) of Additional Protocol II is not permitted.

64

IACtHR, Case of the Massacres of El Mozote and Nearby Places v. El Salvador, Judgment: Merits, Reparations and Costs, 25 October 2012, Series C – No. 252, para 286 (internal footnotes omitted). 65 Henckaerts and Doswald-Beck 2009, pp 611–612. For the practice underlying this rule, see Henckaerts and Doswald-Beck 2005, pp 4017–4044, paras 651–762. For further practice since 2005 – when the ICRC study was first published, see ICRC n.d. Customary IHL Database, Practice Relating to Rule 159: Amnesty.

6 Automatic Criminal Liability for Unlawful Confinement …

165

And so, the situation concerning NSAGs who detain in a NIAC – when we assume that IHL does not provide for such authority – can be summarized as follows: they are almost certainly liable, under ICL, for unlawful confinement (imprisonment) as a war crime and cannot receive amnesty for this offence on account of its character as an international crime (rather than a domestic criminal law offence). This leaves NSAGs in a precarious position. As noted earlier, the ICRC has observed that detention is routinely carried out by NSAGs and States in NIACs.66 This leads us to an important realization: if NSAG members stand to be liable under ICL for the mere act of detention – for which they cannot escape international criminal liability via an amnesty at the end of a NIAC – then what incentive do they have to ensure that the detention is carried out in accordance with IHL? After all, regardless of the legality of the detention itself, IHL is not oblivious as to how detention is to be conducted in a NIAC – which applies equally to States and NSAGs. Although the precise content of the procedures that should be put in place ‘are unsettled under international law today’,67 at a bare minimum, in accordance with Common Article 3(1) to the Geneva Conventions and Article 5 of Additional Protocol II, which reflect customary international law, detained persons in a NIAC are entitled to humane treatment. This prohibits ‘acts as violence to life, outrages upon personal dignity, collective punishments, and the like’.68 Additional obligations are dependent on the capacity of the NSAG in question.69 Common Article 3(1)(d)70 and Article 6(2) of AP II71 also regulate the imposition of any sentences upon individuals that, by definition, must be detained by the NSAG (or State) in question. The practical result of the aforementioned situation is that it will not matter how well detainees of NSAGs are treated; members of NSAGs will nonetheless stand to be individually criminally liable for a war crime for merely detaining alone.72 Even 66 67 68 69 70

See ICRC 2016, para 717; ICRC 2017, para 739. ICRC 2016, para 719; ICRC 2017, para 741. Sivakumaran 2012, p 293. See AP II, above n. 30, Article 5(2)(a)–(e); Sivakumaran 2012, pp 295–296. Common Article 3(1)(d) of the Geneva Conventions prohibits: the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

71

AP II, above n. 30, Article 6(2) provides that: No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality.

72 To be fair, the proper treatment of detained persons by NSAGs in a NIAC would preclude additional ICL charges (such as, for example, torture, inhumane treatment, etc.) but the unlawful – and in this case international criminal – nature of the detention would remain unaffected.

166

M. J. Ventura

if the standards and protections afforded to the detainees by the NSAG during their detention are better than that provided by the State they are fighting against, it makes no difference. In a milieu where detention is illegal and a war crime at the outset, why should NSAGs treat their detainees in accordance with IHL? They stand to face criminal punishment regardless of whether they do or do not. Put another way, members of a NSAG that detain would be in a classic ‘damned if you do, damned if you don’t’ scenario. As Casalin rightly put it: [i]n such a situation, the armed opposition group may see no reason to commit itself to IHL and turn to more devastating methods of overcoming enemy fighters, including those that constitute war crimes, such as killing captured persons or fighting on the basis that no prisoners will be taken. Alternatively, such groups will continue to detain prisoners regardless of legality, the drawback being that, in this situation, the group will also have no incentive to feel constrained by IHL as to whom it may detain and under what circumstances, not to mention how the group is expected to treat detainees. When detention of enemy fighters in order to remove them from hostilities is painted with the same brush as hostage-taking and kidnapping, there is little incentive to comply with the prohibition on the latter two.73

Whether NSAG members will actually face criminal prosecution for detention in a NIAC is, naturally, dependent on multiple (and somewhat unpredictable) factors. But the point here is that, based on the above analysis, the incentive-based system of IHL breaks down in an environment where NSAGs do not have the power to detain in a NIAC, at least in so far as to how individuals should be detained. This does not, of course, provide a definitive answer to the underlying question of whether IHL grants (or not) an authority to detain to participants in a NIAC. But that was never the aim of this chapter. Nonetheless, it is submitted that the issues raised herein should form part of the wider discussions of this issue. While it is clear that there is no explicit provision in the various IHL treaties that regulate NIACs that provides for a power of detention, that is not, in and of itself, fatal to its recognition. It is worth keeping in mind that the International Court of Justice has held that treaties should be read as a whole ‘in order to draw, if need be, certain necessary implications’ and that even if they do not contain express provisions providing for a certain right, then ‘the question must be asked whether such a right does not flow from other provisions with a different purpose, but of which it may, to a certain extent, be the necessary consequence.’74 The power to detain in a NIAC – when one considers the implications from an ICL perspective – could be a right or power of this kind.

73

Casalin 2011, p 750. See ICJ, Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua), Judgment, 13 July 2009, ICJ Reports 2009, p 246, paras 77–79 (where the ICJ held that although Article VI of the Treaty of Limits (Cañas-Jerez Treaty) (1858) between Costa Rica and Nicaragua only guaranteed a right of free navigation for Costa Rica on the San Juan River for the purposes of commerce, a right of free navigation for non-commercial purposes for the local population could nonetheless ‘be inferred from the provisions of the Treaty as a whole’ – despite the fact that the treaty did not contain any express provision to that effect). 74

6 Automatic Criminal Liability for Unlawful Confinement …

167

References Aughey S, Sari A (2015) Targeting and Detention in Non-International Armed Conflict: Serdar Mohammed and the Limits of Human Rights Convergence. International Law Studies 91:60–118. Boas G et al. (2008) International Criminal Law Practitioner Library: Volume II – Elements of Crimes Under International Law. Cambridge University Press, Cambridge. Casalin D (2011) Taking Prisoners: Reviewing the International Humanitarian Law Grounds for Deprivation of Liberty by Armed Opposition Groups. International Review of the Red Cross 93(883):743–757. Clapham A (2017) Detention by Armed Groups under International Law. International Law Studies 93:1–44. Debuf E (2013) Captured in War: Lawful Internment in Armed Conflict. Hart Publishing/Editions A. Pedone, Oxford/Portland. Goodman R (2009) The Detention of Civilians in Armed Conflict. American Journal of International Law 103(1):48–74. Goodman R (2015) Authorization versus Regulation of Detention in Non-International Armed Conflicts. International Law Studies 91:155–170. Heffes E (2015) Detentions by Armed Opposition Groups in Non-International Armed Conflicts: Towards a New Characterization of International Humanitarian Law. Journal of Conflict and Security Law 20(2):229–250. Henckaerts J-M, Doswald-Beck L (eds) (2005) ICRC Customary International Humanitarian Law – Volume II: Practice. Cambridge University Press, Cambridge. Henckaerts J-M, Doswald-Beck L (2009) ICRC Customary International Humanitarian Law – Volume I: Rules. Cambridge University Press, Cambridge. Hill-Cawthorne L (2016) Detention in Non-International Armed Conflict. Oxford University Press, Oxford. International Committee of the Red Cross (n.d.) Customary IHL Database. Practice. https://ihldatabases.icrc.org/customary-ihl/eng/docs/v2_rul. Accessed 5 May 2019. International Committee of the Red Cross (2014) Internment in Armed Conflict: Basic Rules and Challenges. https://www.icrc.org/en/download/file/3223/security-detention-position-papericrc-11-2014.pdf. Accessed 5 May 2019. International Committee of the Red Cross (2016) Commentary on the First Geneva Convention. https://ihl-databases.icrc.org/ihl/full/GCI-commentary. Accessed 31 May 2019. International Committee of the Red Cross (2017) Commentary on the Second Geneva Convention. https://ihl-databases.icrc.org/ihl/full/GCII-commentary. Accessed 31 May 2019. Mačák K (2015) A Needle in a Haystack? Locating the Legal Basis for Detention in Non-International Armed Conflict. In: Dinstein Y (ed) Israel Yearbook on Human Rights, Vol. 45. Brill/Nijhoff, Leiden/Boston, pp 87–106. Murray D (2017) Non-State Armed Groups, Detention Authority in Non-International Armed Conflict, and the Coherence of International Law: Searching for a Way Forward. Leiden Journal of International Law 30(2):435–456. Rona G (2015) Is There a Way Out of the Non-International Armed Conflict Detention Dilemma? International Law Studies 91:32–59. van Amstel N (2012) In Search of Legal Grounds to Detain for Armed Groups. Journal of International Humanitarian Legal Studies 3(1):160–191. Sivakumaran S (2012) The Law of Non-International Armed Conflict. Oxford University Press, Oxford.

168

M. J. Ventura

Manuel J. Ventura is an Associate Legal Officer in the Office of the Prosecutor (OTP) at the International Residual Mechanism for Criminal Tribunals, an Adjunct Fellow at the School of Law at Western Sydney University and is a Director of The Peace and Justice Initiative. He has previously served in Chambers at the Special Tribunal for Lebanon (STL), in the OTP at the International Criminal Tribunal for the former Yugoslavia, in Defence at the International Criminal Court, and Chief Justice Mogoeng Mogoeng at the Constitutional Court of South Africa and President Antonio Cassese at the STL. He is an editor of Modes of Liability in International Criminal Law (Cambridge University Press, 2019) and publishes regularly on topics related to international criminal law and justice.

Chapter 7

Detention by Non-State Armed Groups in NIACs: IHL, International Human Rights Law and the Question of the Right Authority Frédéric Mégret

Contents 7.1 Introduction........................................................................................................................ 7.2 International Humanitarian Law and the Ambiguity of a Humanitarian Privilege to Detain ............................................................................................................................ 7.3 International Human Rights Law and the ‘Right Authority’ ........................................... 7.4 Conclusion ......................................................................................................................... References ..................................................................................................................................

170 174 180 187 191

Abstract This chapter brings attention to the quite divergent consequences of dealing with the issue of detention by non-State armed groups in non-international armed conflicts under international humanitarian law and international human rights law. The conventional approach to detention in international humanitarian law is that armed groups only have a de facto power, bound by humanitarian obligations. Under the laws of war, the question is partly tied to whether States themselves have the prerogative to detain under Common Article 3 to the 1949 Geneva Conventions and the 1977 Additional Protocol II, a question that is far from settled. Non-State armed groups raise the added problem that they may not be recognized, or be recognized only for the purposes of endorsing humanitarian obligations. If international humanitarian law does not apply to the authority to detain, then the question falls to be resolved by international human rights law. Under the latter, there must be a solid foundation to any deprivation of freedom, and the question cannot simply be one of treating captives humanely. This chapter will suggest that in both cases a theory of non-State actors’ ‘right authority’ is missing when it comes F. Mégret (&) Faculty of Law, McGill University, Montreal, Canada e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 E. Heffes et al. (eds.), International Humanitarian Law and Non-State Actors, https://doi.org/10.1007/978-94-6265-339-9_7

169

170

F. Mégret

to detaining State troops. Historically, this issue has been obscured by the fact that the right authority has been equated with statehood, but the moment may have come to rediscover how one can identify non-State actors that could be considered privileged in the international legal system.




Keywords International Humanitarian Law Non-State Armed Groups Detention International Human Rights Law




7.1




Introduction

Whilst the question of the detention of members of non-State armed groups (NSAGs) by States in non-international armed conflicts (NIACs) has recently attracted significant attention1 (largely linked to a topical case law),2 the symmetrical question—detention by NSAGs of States’ forces—has remained largely on the periphery of the international legal debate. This may be intentional: under-regulation or obscure and ambiguous regulations are strategies that States often employ during diplomatic conferences in order to maintain a margin of flexibility. Interestingly, the question of detention by governmental forces in NIACs has also elicited significant perplexity. NSAGs, however, continue to detain members of State armed forces during armed conflicts, and they are likely to do so even more in the future, creating potential regulatory challenges and dilemmas. The failure to clearly stipulate a regime of detention by NSAGs is one that may have costs for those individuals involved, and also for the regulation of NIACs more generally. When suggesting that the two questions—detention by both States and NSAGs —are symmetrical, I do so in a way that does not prejudge whether they should have a similar or opposite answer. I merely intend to suggest that the two may be linked in ways that this chapter will seek to elucidate.3 The question of detention by both States and NSAGs involves two related but quite theoretically distinct inquiries: the issue of the standards applicable to detention (how?); and the issue of the fundamental validity of detention (whether?).4 While the former addresses humanitarian aspects and immediate operational concerns about what to do with

1 See, among others, Hill-Cawthorne and Akande 2014; Milanovic 2014; Mačák 2014; Sari 2014. See also, for earlier research that is nonetheless relevant, Bellinger III and Padmanabhan 2011; and Deeks 2007. 2 UK Court of Appeal, Serdar Mohammed v. Secretary of State for Defence [2015] EWCA (Civ) 843 (Eng.) and in the Supreme Court [2017] UKSC 2. 3 Andrew Clapham has recently discussed the existence of ‘knock on effects’ of positions about detention in relation to States or armed groups, especially when it comes to the authority to detain. See Clapham 2017. 4 One may think of it, even though the terminology is a bit misleading, in terms of a jus in detentio, and a jus ad detentium.

7 Detention by Non-State Armed Groups in NIACs

171

detainees; the latter operates at a deeper structural level of the regulation of armed conflicts and problematizes the legitimacy of NSAGs in warfare. In turn, the duality of questions raised will lead us to consider whether detention by these groups is merely a factual reality that needs to be regulated, or a deeper normative issue that raises questions of whether and when they should be allowed to detain in the first place. Concretely, the goal of regulating detention in NIACs may appear to be mostly about the protection of detainees against certain abuses of their welfare, dignity or humanity. But it should be clear that, through the discreet humanitarian regulations of this or that aspect of warfare, larger issues of war and law stand to be decided in ways that should matter to anyone interested in the normative theory of warfare. First and foremost among them is the status that should be granted to NSAGs. This is the question that will concern this chapter primarily, and the terminology that surrounds this issue has been, perhaps revealingly, somewhat scattered. What is at stake can be described as a privilege, a prerogative or an authority, which are sometimes used interchangeably. The main point of these three notions is that they operate at an intermediary level: an actor holding a privilege, prerogative or authority to detain is not someone who always thereby detains lawfully; rather, it is someone who is considered to be normatively habilitated to do so under certain conditions, irrespective of the fundamental legality of doing so. For example, in an international armed conflict (IAC), a State could intern a civilian in violation of international humanitarian law (IHL), but only few would disagree that if anyone has the authority to detain in an IAC, as it is indeed a State. The idea that NSAGs have an authority to detain (and perhaps more, for example an authority to kill or capture enemy combatants) is clearly among the most controversial in international law. It is a step towards conceiving such groups as legitimate participants in warfare, whereas the international community has traditionally sought to ensure that the privileges of war (killing and capturing) are a prerogative only of States. It is, in other words, a departure from the notion that any act of violence by NSAGs is ipso facto illegal. Nonetheless, the question of transcending that traditional framework is precisely the issue that is being insistently raised by the diversification and complexification of armed conflicts. Moreover, the relative taboo that surrounds the question of the authority of NSAGs in international law does not mean that normative practices do not exist regarding that authority. Rather, these practices arguably exist in a subterranean and discreet way, in the shadow of the norms that explicitly address armed conflict and sometimes at the periphery of a positivist elucidation. Even if the State that is confronting the NSAG does not recognize or grant it any authority, other States and international actors might. The policy dilemma appears to be as follows: to what extent does binding NSAGs, even to onerous international standards, also endow them with a status that one would not want to otherwise grant them?5 The fear that following the humanitarian road will destroy the Westphalian system has gripped the regulation

5

Bilkova 2010.

172

F. Mégret

of war—but particularly NIACs—from the outset. This chapter’s central intuition, in this respect, is that adhering to the view that detention by NSAGs is never privileged may be unduly harsh on account of the needs of humanitarian regulation and the characteristics of some NSAGs. Considering that they are always privileged, however, would be unduly generous to actors that, after all, threaten the public order of the State and, potentially, the international system. In effect, the ambiguous nature of the law in this area will be treated as a symptom of this tension, and as an invitation to theorize dynamically. There has been a discreet renewal of interest in the last few years that has put the issue of detention in armed conflict on the map,6 and this is part of a broader interest in the normative status of NSAGs in armed conflict.7 The focus has been on the extent to which IHL regulates detention by NSAGs, notably in terms of its protective guarantees,8 but there has also been an occasional interest in the authority to detain by these entities.9 This interest, however, has often stumbled on the fragmented and elliptical nature of IHL when it comes to the possibility of NSAG privileges. This has left practitioners and scholars seeking to take a position based on the very little that is tangible. By comparison, there has been less interest in how international human rights law (IHRL) might apply to such detention, even though the applicability of this legal regime in armed conflict is otherwise a much-debated issue.10 IHRL, of course, stands to be applicable in situations that do not reach the threshold of armed conflict; but even in these violent scenarios, where the lex specialis rule (IHL) is typically understood to displace its application, it may have a residual or parallel role to play in shedding some light on aspects related to the lawfulness of detentions. Most notably, as this chapter will argue, IHRL may bring a more explicit and fully developed response to the question of authority to detain. Several preliminary remarks are in order. First, this chapter will only consider detention and not, for example, trial practices or indeed the question of the general privilege of belligerency (including the authorization under international law to kill and wound). Its intuition is that each of these practices is severable and that one may commit to a model of legal detention by NSAGs without committing to a general recognition of the equality of armed groups as belligerents in NIACs. For example, one might see NSAGs as capable of detaining members of a State’s armed forces, while at the same time being much more reluctant to recognize a privilege to conduct trials. An ability to detain is a quite minimal ability, very closely related to the practice of armed conflict and quite fundamentally humanitarian in nature; if

6

See Heffes 2015; Murray 2016; Clapham 2017; and Murray 2017. Somer 2007; and Mégret 2014. 8 Clapham 2017. 9 Murray 2017. 10 See, among many others, Arnold and Quénivet 2008; Tomuschat 2010; Provost 2002; Orakhelashvili 2008; Meron 1989; Hagan and Rymond-Richmond 2015; Droege 2007; Milanović 2009; Milanovic 2007; Doswald-Beck and Vité 1993; Kretzmer 2009; Sassòli and Olson 2008. See also Chap. 8 by Henckaerts and Wiesener in the present volume. 7

7 Detention by Non-State Armed Groups in NIACs

173

NSAGs do not even have the legal ability to detain, then this bodes ill of their privilege to conduct trials or kill. Second, this chapter’s focus is on the international law applicable to detention by NSAGs. The main reason is that there is not much to expect from the domestic law of various States: lawful detention by NSAGs is typically and understandably not something envisaged within the normal application of such legal frameworks. Detention by NSAGs (or by anyone that is not the State) would be governed by domestic criminal law, which prohibits unlawful deprivations of liberty, such as, for example, kidnapping. Needless to say, there is no ‘internal humanitarian regime’ of kidnapping which could be practiced in a certain way to minimize suffering to armed conflicts’ victims, let alone that it might be legalized if undertaken by certain groups or for certain purposes. Nor does any State envisage private actors as having an authority to detain under domestic human rights norms (as distinct, of course, from the issue of States outsourcing detention to non-State actors11). Third, this chapter will focus on detention by NSAGs only in NIACs. This type of conflict is interesting because it sits awkwardly at the intersection of the domestic and international legal regimes, and comes very close to mere internal disturbances. NIACs have, in fact, become a primary terrain for symbolic struggles between IHRL and IHL. For the sake of simplicity, this chapter will focus on traditional NIACs, namely, those that occur between a NSAG and a sovereign State within a single territory, leaving to future developments the application of the argument herein proposed to the so-called transnational or extra-territorial NIACs. This chapter’s aim is a relatively modest one. As part of the larger debate between IHL and IHRL, I want to use the question of detention by NSAGs to show one area in which the applicability of one legal regime or the other or of both can and should be understood as making a considerable difference.12 Indeed, there is occasionally a slightly ‘off-the-shelf’ quality to the debate between the applicability of IHL and IHRL in armed conflict, focused entirely on the conditions of their applicability and an exegetic reading of their texts,13 but with relatively less attention to systemic questions of normative tension and coherence. Notably, there is sometimes a certain tendency to merely see human rights protections as more onerous and as peacetime versions of IHL ones. Contrary to this tendency, I argue that the authority of NSAGs to detain will vary fundamentally depending on whether one addresses it from the point of view of either IHL or IHRL. This chapter thus begins by mapping the current debate on the possible authority to detain by NSAGs under IHL (II). It then contrasts and supplements that body of work with a reflection on the way in which IHRL might help us to think further about the question of the authority to detain in NIACs (III). As a result, it will contrast what this chapter describes as an IHL’s pragmatic and humanitarian

11

See also Chap. 2 by Gasser and Malzacher in the present volume. The search for areas where the joint applicability of IHL and IHRL really makes a difference is very much one of the crucial challenges of the debate. 13 Rodenhäuser 2015. See also Chap. 8 by Henckaerts and Wiesener in the present volume. 12

174

F. Mégret

privilege to detain (‘humanitarian privilege’) with the IHRL one, which is necessarily much more axiological and foundational (‘right authority’). Based on some of the quite unique characteristics of the power to detain, the chapter concludes with some suggestions as to why we may find it hard to answer the riddle of detention by NSAGs and where we might want to look in order to push the inquiry further.

7.2

International Humanitarian Law and the Ambiguity of a Humanitarian Privilege to Detain

The question of detention by NSAGs mainly arises in NIACs and, as a result, suffers from all the limitations of the regulation of such conflicts. NIACs are the conflicts that were ‘never meant to exist’ under international law, and those where States are most reluctant to make significant concessions in terms of regulation, even if that translates into a humanitarian shortfall.14 States are particularly wary that, although unwittingly, NSAGs may be endowed with an enhanced status as a result of being burdened by IHL obligations. This would be the case, for example, if such groups, having to comply with certain rules whilst detaining, were consequently seen as having somehow obtained a privilege to detain. Although perhaps not as significant as the privilege to kill in combat, this would be a symbolic breach of the default rule under domestic law that NSAGs are evidently not allowed to detain anyone (indeed they are normally not even allowed to exist15). Detention is therefore one of the areas in which States have been most reluctant to recognize NSAGs as having a privilege. Whereas IHL is often understood to be broadly characterized by a convergence between the regime applicable to IACs and NIACs,16 such a development has not materialized in NIACs when it comes to this specific privilege. The dominant approach to Common Article 3 (CA3) and Additional Protocol II of 1977 (AP II), in fact, can be summarized as ‘all obligations, no privileges.’ It is one that focuses heavily on humanitarian restraint, and maintains a studied agnosticism about whether the practices in question (here, detention) are lawful in any fundamental way. This is, of course, in line with IHL’s prevailing pragmatism, which manages to secure a humanitarian outcome without dignifying NSAGs. Whether this is an entirely sustainable position, both doctrinally and practically, is one of the most hotly disputed issues in IHL today.17

14

For an analysis of a State’s non-legal and non-humanitarian motivations for denying non-State armed groups any status, see Steinhoff 2009. 15 See Chap. 2 by Bellal in the present volume. 16 Crawford 2007. 17 Watkin 2009; Bassiouni 2008; Sivakumaran 2011; Sassòli 2010; Roberts and Sivakumaran 2012; La Rosa and Wuerzner 2008; Lacroix et al. 2011; Kleffner 2011; Kaplan 2013; Hofmann 2006; Higgins 2009; Buckley 2011; Bongard 2008; Bongard and Somer 2011; Bellal and Casey-Maslen 2011; and Bangerter 2011.

7 Detention by Non-State Armed Groups in NIACs

175

There is, however, a complicating factor which has to do with States’ more general reluctance to bind themselves in NIACs. The question of whether NSAGs have the authority to detain in NIACs would seem to be influenced by whether even States themselves have such a prerogative under international law. At the very least, if States are considered, based on a constructive and dynamic interpretation of CA3 and AP II, to have the privilege to detain members of NSAGs, then this might make it easier to argue that NSAGs also have it on the basis of a typical ‘equality of belligerents’ argument. The argument could then be made that obligations under the laws of war ought to be symmetrical and that one of the operating conditions for IHL is the equality of belligerents.18 It could also draw on the fact that both CA3 and AP II are very non-committal about who is bound by their provisions, and therefore one might think that what applies to one side (the State) may conceivably apply to the other (the NSAG). Incidentally, at least when it comes to IHL in NIACs, the ICRC’s position has long been that both sides have the same obligations.19 Conversely, if States cannot detain in NIACs under IHL, then a fortiori such an outcome seems improbable when it comes to NSAGs. In this respect, it is indeed not clear that, under IHL, States may detain members of NSAGs in NIACs. This is the conclusion that emerged from the High Court’s Serdar Mohammed v. Ministry of Defense decision, and the quite intense doctrinal debate that followed. In the early stages of that case, the High Court Judge insisted that ‘[n]either CA3 nor Article 5 of [AP II] contains any express statement that it is lawful to deprive persons of their liberty in an armed conflict to which these provisions apply. All that they do is to set out certain minimum standards of treatment which must be afforded to persons who are detained during such an armed conflict’.20 In the Supreme Court, Lord Sumption subsequently concluded that, whilst detention is widely practiced and makes sense from a humanitarian perspective as a way of mitigating armed conflict, ‘a significant number of states participating in non-international armed conflicts … do not yet regard detention as being authorised in such conflicts by customary international law’.21 This may seem a somewhat strange assertion: if there is a humanitarian regime applicable to a situation of detention, then surely there must also be a legal prerogative by such forces to detain in the first place. But things are not that clear cut. First, there is really not much of a humanitarian regime of internment in NIACs. The general guarantees of CA3 that prohibit torture or to treat individuals inhumanely apply to a range of situations and not only to detention. Article 5 of AP II remains very general and includes both those individuals interned and detained. Second, the humanitarian regime of detention in 18

Heffes 2015. ICRC 2016, paras 503–504. 20 Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB), para 239. 21 Serdar Mohammed v. Ministry of Defence [2017] UKSC 2, para 16. See in particular Lord Reed (‘I have not been persuaded that there exists at present either sufficient opinio juris or a sufficiently extensive and uniform practice to establish the suggested rule of customary international law’). 19

176

F. Mégret

NIACs is silent as to why persons may be detained for reasons ‘related to the conflict’.22 It is of course in the spirit of humanitarianism to regulate practices in war regardless of their fundamental legality or illegality (enshrined, for example, under jus ad bellum), but here we are not even given an indication as to what intermediate humanitarian authority the relevant actors may have to detain. It could therefore be that States are not specifically endowed with the privilege to detain members of NSAGs but only that, if they do, they must respect a certain number of IHL standards. The same, then, might apply to NSAGs: at best, they would only be bound to treat their de facto prisoners in certain humane ways, but not particularly allowed to detain them in the first place. This would not flow from any a priori commitment related to the equality of belligerents’ principle, but merely from the fact that if a text cannot sustain an authority to detain for States, then it cannot be held to sustain one for NSAGs. It seems logically difficult at any rate—although perhaps not impossible—to infer a privilege to detain from the fact that one is obliged to detain in certain ways. Note that the absence of a privilege to detain in IHL does not mean that it does not exist elsewhere—only that it is not anticipated by IHL. This view, in fact, seems to be in line with the broadly pragmatic and agnostic approach of IHL—particularly in NIACs.23 Whether this is sustainable is a complex question. It is of course plausible for IHL to neither authorize nor prohibit detention in NIACs, for example, in order to maximize humanitarian compliance without risking offending States by excessively dignifying NSAGs; but the question is whether it is entirely logical from the point of view of general public international law to do so. In other words, one might think that there is a distinct interest in international law determining whether NSAGs can legitimately detain that is not reducible to humanitarian considerations and whether this is connected to the general regime of the use of force. For example, the regulation of IACs already implicitly recognizes State combatants as being at least presumptively habilitated to engage in combat. Although their State may have engaged in war unlawfully under jus ad bellum, their own privilege of belligerency is guaranteed.24 Of course, it might be that this is simply an issue on which international law has no particular stake, belonging to the domaine réservé of States. Accordingly, whether States recognize privileges of belligerency and to detain to themselves and possibly to NSAGs would be left entirely to their domestic law. In the international

22

There are certainly arguments to that effect, even though CA3 and AP II cannot be said to include a comprehensive regime of detention. See Goodman 2015. 23 There are countless examples of international law doing just that. See Akande and Hill-Cawthorne 2014. Specifically, when it comes to the issue of detention, the fundamental problem of detention by NSAGs has been described as the fact that ‘every detainee is in a situation of particular vulnerability (regardless of the character of the detaining authority), both vis-à-vis their captor and in relation to their environment’. Aeschlimann 2005, p 83. In other words, the grounds for detention matter far less than the actual humanitarian conditions of detainees––a quintessential humanitarian approach. 24 Mégret 2006.

7 Detention by Non-State Armed Groups in NIACs

177

realm, States might forego the formal recognition of a privilege to detain in NIACs knowing full well that when it comes to their agents, these will be ‘covered’ under domestic law whereas members of NSAGs will not. This would also explain the oddity that States did not grant themselves an explicit privilege to detain in IHL: they never entertained any doubt that they had this privilege all along, or at least that they could de facto safeguard it. Although that argument may have been tenable historically, the international and domestic legal regimes increasingly operate on a continuum, and one would therefore expect a more principled international position on the privilege to detain by States. Moreover, from a general international law perspective, one might think that there could be at least an implicit stance on whether States have an authority to detain in NIACs, if only based on a default rule such as the one enshrined in the Lotus principle.25 Surely, international law is sympathetic to States fighting NSAGs on their territory and, therefore, having the ability to detain them even in conditions that depart from the ordinary peacetime regime. Given the impact of NIACs on international peace and security, it seems difficult to conceive that international law does not have a position on whether detention in NIACs is at least privileged. Indeed, it is hard to understand why States would not want to specifically grant themselves a power under IHL that they arguably always had. One possibility is simply that the ambiguous character of CA3 and AP II when it comes to detention by any party is, in fact, designed to simultaneously not grant a power of detention to members of NSAGs, whilst not taking it away from States. States essentially wanted to ‘get their cake and eat it’, even though CA3 and AP II ended up being quite confusing on that score.26 As Kubo Mačák puts it, ‘[t]he lack of an express authorization to detain might better be seen as a reflection of the general unwillingness of States to agree on any rules that might be seen as bestowing a degree of recognition on the non-State party to an internal conflict …, but not as an intention to limit their own capacity to act during an armed conflict’.27 This means, at least, that there may be lawful detentions in NIACs by States through some extra-conventional route, even if this privilege would not extend to NSAGs. This asymmetrical operation of the law is not conceptually implausible. It follows, for example, that State’s forces can legally detain members of NSAGs and should do so in a humane way; conversely, NSAGs should treat detainees humanely, but have no particular privilege to do so in the first place. As Aurel Sari

25

The Lotus case concerned the issue of extra-territorial jurisdiction but is generally remembered as standing for the rule that States do not need some special permissive rule of international law to engage in behavior that is not otherwise prohibited. Rather, the assumption is that of freedom to use their sovereignty as they please. Here, that would include the a priori power to detain members of NSAGs on their territory. PCIJ, The Case of the S.S. Lotus (France v. Turkey), Judgement, 7 September 1927, Series A, No. 10, para 46. 26 Perhaps so confusing that, from a purely textual reading, they may either ‘have gotten their cake but not eaten it’ (detention powers for States, but also for NSAGs) or ‘gotten neither their cake nor eaten it’ (no detention powers for NSAGs, but also no detention powers for States either). 27 Mačák 2014.

178

F. Mégret

explains, in this scenario ‘common Article 3 and Additional Protocol II provide for equality of protection, but not equality of belligerent status and rights’;28 or, as Somer puts it, the laws of war provide for ‘parity’ of rights and obligations rather than ‘equality’ of standing.29 The rationale for such asymmetrical apportionment of prerogatives would be a form of deferral to statehood (as evidenced, for example, by the fact that only States are parties to humanitarian conventions), a de-emphasizing of reciprocity in the implementation of IHL in NIACs, and a concern with not conferring belligerent rights to NSAGs.30 Under this view, armed groups would have no privilege to detain not because no one does in NIACs, but very much because only States do. Such a policy effectively creates obligations only for NSAGs without granting them much in exchange.31 One would hesitate to consider that there is a general ‘principle of equality’ that actually requires NSAGs to be treated as States. Still, from a policy point of view, there are well-known problems with the asymmetrical operation of the laws of war. Asymmetry, for example, is very much what is rejected as unworkable in IACs and for quite solid reasons. The viability of an ‘all obligation, no privilege’ model in any conflict is hardly guaranteed. In a conflict between equals (States), it is often presented as inconceivable, and reciprocity is seen as a basic practical and social building block of implementation. In a NIAC, non-reciprocity means asking NSAGs to abide by obligations without enjoying a privilege whilst the other side has the obligations and the privilege. In effect, it entails asking them to understand that, as rebellious movements who may deeply believe in the justness of their cause and indeed their relative respectability as non-State armed actors, they should nonetheless accept that they are only entitled to a secondary status under the laws of war. This then explains a certain tendency among commentators that want to level the playing field and ‘equalize’ the position of NSAGs in NIACs, in an effort to take advantage of the reciprocal structure of the laws of war.32 In this respect, although it is quite clear that the laws of war themselves do not confer a privilege of detention to NSAGs, one should at least concede (as one has for States) that they do not exclude the possibility of such a privilege under a different branch of international or domestic law. It is worth noting that the drafting of CA3 and AP II do not seem to have strayed far from the conventional notion that parties to (even) a NIAC are, for the purposes of IHL, equal.33 In fact, many States do not adhere to a view that members of NSAGs are entirely unprivileged, and some have even granted a quasi-POW status to captured members of these groups.34

28 29 30 31 32 33 34

Sari 2014. Somer 2007, p 663. Rona 2015, p 38. Sassòli 2011. Heffes 2015. See for example Sandoz et al. 1987, p 1345; Somer 2007. Sivakumaran 2011, pp 479–480.

7 Detention by Non-State Armed Groups in NIACs

179

As Sivakumaran affirms in relation to the broader question of belligerency, ‘while the practice is certainly not such as to argue that there is a rule of customary international law that requires captured fighters to be granted prisoner of war status, or even to be treated as prisoners of war, the position is more nuanced than the law of non-international armed conflict suggests’.35 Such evolutions have to be seen in the context of AP II’s well-known encouragement of amnesties for rebels in Article 6(5) (which, as it has been clarified in the context of the rise of international criminal law, do not apply to war crimes but do apply for ordinary acts of combat), and a tendency of States to prosecute rebels, if at all, for rebellion/treason as opposed to every act of ‘unprivileged’ harming of State combatants.36 This is not the same as recognizing a formal privilege of belligerency, but it is part of a cluster of developments that are relatively sympathetic to NSAGs. Certainly, for those denying that NSAGs have a privilege to detain, it is difficult to find evidence of cases where, in the course of or following a NIAC, members of such groups have been prosecuted under domestic law specifically for the ‘wrongful detention’ of the armed forces of the relevant State (as if, for example, this were the equivalent of an abduction or kidnapping). It is far more likely that they would be prosecuted for war crimes committed in the course of such detention if the detention does not fulfil certain minimum humanitarian criteria than for the detention itself. Moreover, the interaction of various organizations, including the International Committee of the Red Cross (ICRC), with NSAGs suggests that what the latter do is not entirely beyond the pale.37 The practice of the laws of war is, therefore, more complex than the letter of the law’s supposed pro-State biases. Reconciling these developments with the interpretation of the law, however, requires a little more than simply nodding to the possibility that ‘the law on the books does not always track the law on the battlefield’, or rushing to embrace the equally implausible view that all NSAGs have a privilege to detain members of State’s armed forces merely as a result of some mysterious customary process. Perhaps what the combination of the ambiguities of the law and the practice of States suggests is, in fact, something quite subtle: that it remains important for States to be, in principle, able to deny a privilege to detain to NSAGs, whilst it is also, practically and normatively, necessary to be able to recognize the reality of that detention. This could merely be symptomatic of a familiar principle/practice dilemma (safeguarding the sanctity of the former while being able to overcome it in the circumstances required by the latter).38 Nonetheless, looking closely at the practice may reveal a more complex scenario, namely, the fact that some NSAGs tend to be treated as if they had prerogative to detain. 35

Ibid., p 481. Ohlin 2015. 37 Note however that occasionally such accusations have been made, and that engaging with such groups on grounds other than strictly humanitarian ones may be illegal in some states. See Holder v. Humanitarian Law Project, 561 U.S. 1 (2010). See Chap. 13 by Quintin and Tougas in the present volume. 38 See for example in jus ad bellum, Simma 1999. 36

180

F. Mégret

Clearly, when it comes to granting amnesties more generally, or deciding whether to prosecute NSAGs’ members for common kidnapping of a State’s armed forces, considerations about the relative respectability of the relevant group are likely to arise. In this sense, the African National Congress is not the Colombian National Liberation Army (Ejército de Liberación Nacional), and the Taliban are not Al Qaeda. Although it is beyond the scope of this chapter to inquire in detail about the relative recognition of such groups and their treatment, notably, in transitional justice processes, it is suggested that States could be influenced by the type of NSAG they have faced throughout the conflict. There is a normative theory potentially lurking below the surface when it comes to identifying which NSAG, when and why are effectively recognized to have certain privileges, but it requires us to do significant work beyond second guessing IHL’s silences. It is of course possible that detention by NSAGs could always be unprivileged. But such an outcome is neither necessary from the point of view of humanitarian logic, nor conducive to the best international legal results, in that it might end up recognizing a privilege to detain to groups that have done nothing to earn it. Indeed, recognizing a privilege to detain might reduce disincentives to take up arms by rebels (by conferring upon them a presumptive legitimacy) and lead to manifest human rights violations (as a result of the violence so triggered, violence which may be hard to justify). When it comes to NSAGs, the problem is that it is difficult to rely on a presumptive legitimacy of the sort conferred, for better or worse, by statehood. Under what conditions, then, might one consider that NSAGs have or can acquire a prerogative to detain? I return to this question in the conclusion but for now I want to focus on the potential of IHRL to fill the gap left by IHL.

7.3

International Human Rights Law and the ‘Right Authority’

Given the silence of IHL on the authority to detain in NIACs, it is difficult to conceive it as providing an answer to this issue. The IHL framework, instead, tells us how detention should be carried out, not whether and on what basis it might be carried out. As suggested above, however, the foundation and legality of detention ought to be ultimately assessed in law, in a context where international law can hardly be indifferent to the question of whether NSAGs’ detention practices are privileged or not. The immediate body of law that comes to mind as being applicable in such situations is, of course, domestic law. In practice, detention in NIACs by States is likely to be grounded in domestic law provisions, even when that same legal framework prohibits any form of non-State sanctioned detention. One should not, however, confuse the immediate basis for detention in domestic law (or its prohibition) and its ultimate validity under international law. In this day and age,

7 Detention by Non-State Armed Groups in NIACs

181

especially when it comes to something as fundamental as the freedom of individuals, domestic law is heavily constrained by IHRL.39 This legal regime has a long-standing interest of its own with issues of detention, which is addressed via a strong principled stance against arbitrariness. Domestic law cannot override IHRL when it comes to the freedom from arbitrary detention. This is why it is tempting to consider the applicability of human rights standards to detention in NIACs in order to at least fill in the gaps left by IHL. Since IHRL clearly applies to States, and since States have deprived themselves of the ability to make much of a lex specialis claim as a result of CA3 and AP II’s silence on this issue, they must be able to justify on what grounds they might detain members of NSAGs in NIACs in conformity with IHRL. Indeed, security detention is not prohibited categorically under IHRL as long as it is not arbitrary, and one might think that fighting a NSAG requires a State to be able to engage in security detention. In this respect, there is much flexibility in the body of IHRL to take into account situations of necessity and national emergencies. Nonetheless, IHRL could still be seen here as constraining and thus providing a deeper rationale for the application of IHL. Indeed, the European Court of Human Rights has hinted that even detention in IACs can be subsumed under Article 5 of the European Convention on Human Rights.40 One could imagine, for example, that the detention of NSAGs’ members by States would be justified as a form of security detention specific to armed conflict under IHRL. By analogy, one could justify these deprivations of liberty by borrowing the standard for the internment of civilians in IACs, namely that the detention be for ‘imperative reasons of security’.41 Here, the ground for the authority to detain also becomes its deeper justification: it is only because detention is justified by extreme exigencies that it is an acceptable practice from the point of view of IHRL. Note that, in this conceptualization of the relationship between IHRL and IHL, the question is not simply one of functional specialization leading the lex specialis to mechanically apply instead of the lex generalis: rather, the lex specialis must be justifiable under the terms of the lex generalis.

39 In passing, one of the little remarked ironies of the reluctance to further engage with the issue of the prerogatives of NSAGs under IHL is that it could open the door to the application of IHRL to detention. It could therefore arguably bind States opposing NSAGs in NIACs even further (although not at the cost, it should be said, of recognizing such groups as belligerents). This is worth bearing in mind when thinking about the strange gambles that States engage in when developing international norms: the alternative to recognizing some sort of belligerent status to NSAGs is not necessarily a freer hand but one that may be at least substantively more constrained. This could of course be rationalized. It may be, for example, that States prefer the feigned normalcy of human rights law when dealing with their rebellious subjects than the anomalous consequences of recognizing them as belligerents because at least symbolically this shows States to be more in charge (and perhaps also more concretely avoids the invocation of the war crimes provisions of IHL which have no immediate analog in IHRL). 40 ECHR, Hassan v. United Kingdom, Judgment, 16 September 2014, App. No. 29750/09. 41 Procedural principles and safeguards for internment/administrative detention in armed conflict and other situations of violence 2005.

182

F. Mégret

Such a regime that draws on IHL but is subsumed within human rights seems quite workable, at least when it comes to States, being neither excessively utopian nor excessively apologetic.42 On the one hand, it could open the way to the sui generis guarantees of IHRL applying to detention in NIACs, including the power to challenge one’s detention as arbitrary in ways that would modify or complement IHL.43 On the other hand, and more interestingly, it could help to frame the authority to detain as resulting from something other than the fact that detention practices exist and that it might make humanitarian sense to recognize them as lawful. Because detention by States is of course possible under IHRL, and derogations are at any rate possible precisely in war-like circumstances,44 this body of law might well end up justifying a fairly extensive regime for detention, perhaps even one that is not that different from the one applicable in IACs. Of course, security detention under IHRL must still not be arbitrary, and derogations, if there are to be any, must themselves be necessary, proportionate and consistent with the State’s obligations under international law. Some of the initial difficulties related to the applicability of IHL to NSAGs, however, also exist when dealing with IHRL. For instance, applying human rights to NSAGs leads to all kinds of challenges because human rights discourse has been historically understood as addressing only States. Let us assume for the sake of the argument—and as we will see it is a highly complex assumption—that NSAGs have the authority in war to limit the freedom of ‘persons within their jurisdiction’ under certain circumstances, to use the standard IHRL terminology. Within this framework, what would count as prohibited ‘unlawful or arbitrary detention’45 if practiced by a NSAG, and a contrario, what would be permitted as ‘lawful and non-arbitrary detention’? The idea here is that detentions must be pursuant to law, but what is the law of a NSAG? It is certainly unlikely that such a group will be willing to apply the law of the State that it is fighting against. Can it prescribe norms in a way that is recognizably ‘legal’ (predictable, general, etc.) or is there a sort of manifest contradiction between NSAGs and the very idea of legality? It is hardly clear that an approach from IHRL will always make sense for these groups, mostly because the majority of them do not and cannot in all respects behave like States. In fact, most NSAGs do not have internal ‘laws’, not even criminal ones, and they do not preside over ‘democratic societies’ that could give

42

Dormann 2012. Under the Fourth Geneva Convention this is also a possibility in Article 78, but a challenge on human rights grounds would presumably take a different form and create distinct remedies. It is of course also possible that certain human rights guarantees would be incorporated on an ad hoc basis to the regime of detention as part of the process of ‘humanization’ of the laws of war. Hybridization between IHRL and IHL is a practical possibility as well as, in some circumstances, a normative necessity. 44 Rona 2015. 45 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171, entered into force 23 March 1976 (ICCPR), Article 9.1. 43

7 Detention by Non-State Armed Groups in NIACs

183

meaning to attempts to restrict the ‘arbitrariness’ of detention. Most of the existing language addressing human rights violations stems from the experience of statehood, which creates significant and not just epiphenomenal problems of translation when one seeks to apply it to NSAGs’ practices. In some circumstances, one might think in terms of a pragmatic sliding scale of obligations for such groups,46 based on what functional bits of sovereignty they can lay claim to. However, this approach is more difficult when it comes to human rights than it is under IHL given the broad and unitary State framework envisaged under the former. Be that as it may, there is arguably a much bigger problem than some of the abovementioned practical difficulties of adapting the language of IHRL to NSAGs in NIACs. Much of the literature on the topic tends to go through the motions of what specific human rights obligations entail, and how NSAGs might be able to abide by them.47 The risk of this approach, and it is a risk that becomes particularly apparent as one moves away from the assumptions that characterize the application of human rights to States, is that one will avoid asking the question of why certain armed groups have or should endorse human rights obligations in the first place. Whether non-State actors can be subjects of IHRL obligations is, of course, a question that is the object of growing interest.48 From a positivist approach, much has been made, for example, of the fact that various international actors have relatively frequently called upon NSAGs to abide by human rights standards. It is risky, nonetheless, to read too much into such pronouncements, some of which may simply reflect wishful thinking. The call to ‘respect human rights’, as it is often addressed to NSAGs, might simply mean ‘do not commit atrocities’, rather than being a well-thought recognition that they are, in fact, potentially fully-capable subjects of IHRL with, for example, positive obligations to guarantee rights. One might of course want to encourage NSAGs to endorse obligations similar to States precisely through the application of human rights obligations, so that these would, in a sense, make them international legal subjects (a sort of ‘constitutive’ rather than merely ‘regulative’ approach). But it is unlikely that States intend the prospect of creating ‘sovereigns within the sovereign’, just as they had feared creating ‘(lawful) combatants against the sovereign’ under IHL. If States had qualms about recognizing NSAGs as belligerents under the laws of war, it seems difficult to conceive that they will recognize them as having human rights obligations and responsibilities, a situation which might confer on these non-State entities a quasi-sovereign status. Although one could argue that this would result in this status, which would be characterized only by obligations under IHRL without any trapping linked to their international legal sovereignty, it is not obvious that denying full sovereignty to actors endowed with full obligations is an available

46

Sassòli 2011. For a helpful example see Murray 2016, pp 237–244. 48 Clapham 2006. See also Chap. 8 by Henckaerts and Wiesener, Chap. 11 by Oberleitner and Chap. 14 by Kotlik, all included in the present volume. 47

184

F. Mégret

option, especially given how constitutive of sovereignty human rights are supposed to have become. In practice, the argument for the applicability of IHRL standards to NSAGs is typically made on the basis of them having assumed certain State-like characteristics (rather than one necessarily wanting NSAGs to assume them).49 The more sovereign-like, the easier the case that the relevant actor should pragmatically, and as a matter of principle, endorse human rights obligations. And indeed, surely enough, some NSAGs, especially those that persist over time and occupy certain territory, tend to assume quasi-sovereign functions. The State, under this view, has no monopoly over the human rights that guarantees sovereignty, either in principle or, as the case may be, in practice. The idea that the prerogative to detain simply follows from sovereignty, however, merely begs the question of why that should be so, except as a result of a circular Westphalian commitment to sovereignty as the definitive element of international subjecthood. If IHRL merely grants rights-protecting power to whoever is in a position of authority, the suspicion, sooner or later, may be that it is more interested in maintaining the basic elements of statehood than in pursuing its stated goal of promoting human rights,50 notably in armed conflict.51 In a context where many States routinely violate both the laws of war and IHRL, and where it is perfectly conceivable that some NSAGs would do neither, the idea that sovereignty or quasi-sovereignty should be the sole trigger for human rights obligations is not entirely compelling. Instead, it is suggested that the nature of a NSAGs’ subjection to a particular branch of international law should be sought in the specific normative logic of that branch (and maybe even a particular right within that branch), rather than flowing merely from the sovereignty criterion. The challenge, therefore, is to understand under what conditions IHRL might bind NSAGs when it comes to detention in IHRL’s own terms, rather than determining once and for all whether such armed groups are ‘sufficiently sovereign’. Unlike the IHL regime in IACs, where humanitarian obligations are simply related to the nature of war and the identity of its participants, under IHRL they must be deduced on the basis of some deeper characteristics of the group in question. Here, the major difference between IHL and IHRL is that the latter inevitably leads to questions about the fundamental lawfulness of detention that the former carefully sought to avoid. It is at least open to IHL, as we have seen, to regulate something independently of whether it is fundamentally lawful or not, thus safeguarding a measure of restraint in war, even when the war itself might otherwise be considered illegal. Thus, the existence of humanitarian obligations in an armed conflict does not prejudge the lawfulness of their participation in that conflict (from the point of view of the jus ad bellum), and therefore it does not need to take a

49 50 51

Geneva Academy of International Humanitarian Law and Human Rights 2016, p 26. Mégret 2013. Bilkova 2010.

7 Detention by Non-State Armed Groups in NIACs

185

position on their prerogative to detain. In this way, IHL artfully dodges the question of fundamental legality. But such an option is simply not available under IHRL, at least in the case of detention. An ‘all obligations, no privilege’ approach seems much harder to sustain under the human rights paradigm because the obligations related to detention flow from, and are conditioned by, the privilege to detain. When IHRL says that detention should not be ‘arbitrary’, it cannot merely entail that the means used or the particular grounds under which a detention is justified should not be arbitrary, but that the power of the actor undertaking the detention is in fact not arbitrary. To consider that an actor has human rights obligations implies, more fundamentally, to authorize its power. Human rights obligations differ fundamentally from those from IHL in that they do not merely prescribe the conditions of a practice irrespective of its legality, but are also and even primarily concerned with the fundamental legality of that practice. In particular, although it may well be that all kinds of subjects are bound by human rights (horizontally, as it were)52 with resulting obligations to respect them, only certain subjects have an obligation to protect rights and as a result may legitimately and legally limit them under certain conditions. The privilege to limit rights—including, crucially, freedom—is embedded into the exigencies of social, collective and political life. This means that, from the point of view of IHRL, it is hardly indifferent as to who detains and for what purposes. The legality of detention under human rights law, therefore, cannot be understood in the narrow and paradoxical way in which IHL understands legality, that is, in isolation from an evaluation of the legality of the existence of NSAGs and their use of force. This is why, for example, the view that human rights law merely provides for a number of cumulative ‘procedural guarantees’ or replaces humanitarian limitations risks missing the fundamental point, which is that the specific and radical import of human rights relates to the very existence of a privilege of detention.53 Under IHRL, in other words, one cannot do well what one is not authorized to do in the first place (in contrast to the way that a party unlawfully participating in an armed conflict—say a State responsible for aggression or a rebellious NSAG—can still abide by its humanitarian obligations). A NSAG’s failure, as the case may be, to be a constituted ‘society’ (let alone a democratic society) is not simply a frustrating quirk in the process of adapting human rights law to non-State actors, but potentially a highly significant limit when it comes to the extension of human rights obligations to these entities. Sooner or later, one inevitably reaches for some basis that could anchor the very possibility of detention by NSAGs. 52

Engle 2009. See also Hessbruegge 2005. Of course, the legality of detention may be challenged under the laws of war in IACs, but only from the limited angle that the person concerned was not a combatant at the time of capture. This is a status rather than guilt determination and is therefore less protective. In NIACs, it is much less clear that one can challenge detention since the laws of war do not tell us in the first place that such a detention, whether effected by a State or non-State actor, is legal (although presumably detention of this sort should only be, by analogy with IACs, for combatants). 53

186

F. Mégret

One way of looking at the problem is distinguishing between the concept of ‘necessity’ in human rights and in the laws of wars. Under IHL, necessity is a practical, means-oriented test that does not question the necessity of the pursuit of hostilities itself or the credentials of the actor that engages in them. It merely measures particular military acts in terms of their military usefulness against a general goal of military advantage and weighs this in relation to the collateral harm that may result. ‘Necessity’, in the limitations’ analysis of IHRL, is a far more deontological and principled test: it requires us to evaluate whether curbing a right is ‘necessary’ through and through, that is, both in terms of ends and means.54 Fundamental human rights logic, in other words, decrees that detention cannot be lawful simply because it is justified based on some high standard of operational necessity. If the subject is not authorized to detain in the first place, then it automatically follows that human rights have been violated, even assuming that the detention is otherwise proceeding under good conditions and is arguably necessary in the circumstances. By analogy, one could not, for example, simply ‘try X fairly’ if one did not have the ‘right to try X’ in the first place. If someone is captured by a private group (of whatever kind) and is then ‘tried’ by them in ways that otherwise respects the person’s rights (e.g. granting them a lawyer, trying them within a reasonable time, adhering to the presumption of innocence, etc.), we still would not recognize that trial as lawful under IHRL, at least not without ascertaining whether the private group had some authority to engage in a trial. By contrast, we are inclined to recognize the presumptive authority of the State to prosecute individuals for criminal offenses, as long as this is done in ways that are compliant with human rights. Interestingly, CA3 seems to point in this direction by hinting that the ‘passing of sentences’ by courts that are not ‘regularly constituted’ is unlawful. This could be understood as suggesting that one condition for fairly passing sentences is that one must have a certain legitimate authority to do so in the first place. Human rights obligations, in contrast to IHL, inevitably delineate the contours of an implicit privilege—the privilege to owe rights. Needless to say, this is one of the most securely guarded prizes in international law. Imposing IHRL obligations on NSAGs would therefore be challenging from a State’s perspective, since it could legitimize their status in ways that IHL does not. Indeed, it may well be that, ultimately, one would consider that IHRL does not and should not ever allow NSAGs to detain anyone, even in NIACs. What applying a human rights framework to detentions by these entities inevitably leads to, through a process of logical regression, is addressing whether they fundamentally have a prerogative to detain. As has been made clear in this section, that prerogative cannot merely be a humanitarian power that is agnostic about NSAGs’ status and ends, but must be a principled power that is grounded in rights so that it cannot be found to be arbitrary.

54

See Chap. 12 by Diab in the present volume.

7 Detention by Non-State Armed Groups in NIACs

7.4

187

Conclusion

This chapter has sought to outline some of the complexities of thinking within and beyond a humanitarian tradition when it comes to detention by NSAGs in NIACs. The appeal of the regime of IHL, under one reading, is that it is a system that does not claim to do more than imposing humanitarian obligations concerning detention on NSAGs, whilst not endowing them with a privilege to do so in the first place. However, I have suggested that the question of an authority to detain (and behind it, the question of the broader privilege of belligerency) is one that begs an answer under international law, in a context where it is implausible and unappealing that the issue could be left entirely to State’s domestic law. If IHRL applies to NSAGs, then it must take a position on whether such groups have a fundamental privilege to detain, because one cannot legally detain under IHRL without a right to detain. In a context where it is all but clear that NSAGs can even be subjects of IHRL, the requirement of non-arbitrariness also includes that the actor be itself in some way authorized to proceed with the detention. The ‘international law by the menu’ approach that is sometimes apparent in the treatment of armed conflicts has its limits. Indeed, one cannot simply pick and choose certain aspects of IHL or IHRL that may seem tactically suited to the needs of the moment without importing all the baggage that comes with them. I have argued, in particular, that if one seeks answers to the question of the authority to detain beyond IHL, as is likely to be necessary, then one must be prepared for the fact that IHRL will either lead to the conclusion that NSAGs do not have the authority to detain, or that they do but only under the most strenuous of circumstances. Nonetheless, one of the crucial conclusions of this chapter is that detentions by these non-state entities in NIACs could be an area that is ready for co-regulation by IHL and IHRL. In this context, CA3 and AP II could determine the obligations of means, whereas IHRL would address the more fundamental question of ends. In this conclusion, I want to explore three different ways in which one might think productively and creatively about the question of the authority to detain, beyond the evident ambiguities of positive international law. First, one might think in extremely pragmatic terms about what kinds of obligations for NSAGs are likely to enhance their compliance, to the highest possible degree, with IHL in armed conflict.55 This is a policy question, and thus can be framed quite flexibly, even if it means that international law must be reformed in a certain way to allow changes to take hold. In effect, it is how the question has been increasingly raised in environments where the State is absent, and international actors such as the United Nations or the ICRC are left to engage directly with NSAGs. One argument in this context might be that an ‘all obligation, no privilege’ policy is simply unattractive to these groups, and is therefore unlikely to draw them further into respecting international law. If, regardless of how well they treat detained State troops, NSAGs’ members will always be considered as kidnappers, 55

For a recent example of such an approach, see Clapham 2017. See also Sassòli 2010.

188

F. Mégret

then IHL will be seen as imposing a harsh one-sided Westphalian ideology. On the other hand, it is probably the case that the most privileged NSAGs in the laws of war—national liberation movements—saw their IHL compliance enhanced (all other things being equal) by their increased legitimacy on the international stage. The temptation to ‘play the part’, if one is positively incentivized to do so, may prove strong. It seems plausible that recognizing a certain authority to detain would considerably sweeten the humanitarian deal for NSAGs, although it would inevitably lead to demands concerning other prerogatives related to belligerency (such as, most evidently, the privilege of killing) that most States are likely to find problematic. Indeed, certain proposals have been made in recent years that do exactly that.56 Of course, the recognition of the privileged nature of detention by NSAGs would not, according to the separation between jus ad bellum and jus in bello, imply any recognition of the legality of the cause that led the group to engage in armed conflict. But it might lead to an intermediary recognition that the groups in question were at least ‘the sort of group’ that can detain, just as a State might illegally engage in war but still expect the operations carried out therein to be privileged. Detention by members of NSAGs might even remain unlawful, yet simultaneously privileged. Finally, one could think of ways in which only certain groups, based on their characteristics, could be recognized as having a privilege to detain. Second, strategic or not, the recognition of such a privilege requires that certain principled lines be drawn regarding the changing nature of legal personality in international law. It seems, in this context, that neither the laws of war nor IHRL have much to offer when it comes to the fundamental question of who should have the fundamental authority to detain in armed conflict beyond the State, a question that is ‘above their pay grade’. However, general public international law is itself so wedded into the Westphalian model that it has long ceased to ask—let alone answer —such questions, except in the typically tautological and increasingly unhelpful way of fundamentally limiting legal personality to States (or, at best, international organizations). Of course, saying that the prerogative to detain simply concerns sovereigns remains a possibility, leading to, for example, an inquiry as to whether this or that non-State actor is sufficiently similar to a sovereign to have the obligations and prerogatives that come with it.57 Yet, this chapter has hopefully shown that such an approach is not only unhelpful to solve the practical problem of detention in war (since most NSAGs will not ever be quite like States, and if they were, the problem would be less acute), but is also problematic in principle. Rather than international law’s one-size-fits all approach to sovereignty, it may be useful to re-explore broadly the question of the use of force. In pre-modern just war theory, one of the requirements of a ‘just’ use of force was, aside from having a just cause and fighting within the constraints of the laws of war, that one had the ‘right authority’. Because that question eventually became equated by Vattel with 56 57

Kreb and Mégret 2014 and Kretzmer 2009. Mastorodimos 2016.

7 Detention by Non-State Armed Groups in NIACs

189

the one of whether the subject in question was a State,58 it was eventually largely eviscerated of its content. However, recent interest in ‘right authority’ among just war theorists59 and, indeed, some international lawyers,60 suggests that the requirement may be ripe for at least a theoretical rediscovery when it comes to non-State actors, allowing international lawyers to think about which NSAGs should have a privilege to detain, irrespective of whether their use of force is legal from an ad bellum point of view (which would effectively align the treatment of NSAGs with how States are treated). This is not the place to explore in any detail what ‘right authority’ might mean for NSAGs, but it does open up the possibility of an intermediary level of legality. At the very least, relevant criteria could distinguish certain groups as having a ‘public character’, and thus not being mere brigands or pirates. Some of the requirements for treating NSAGs as belligerents in NIACs, or for applying AP II— considering that it has a more restricted scope than CA3—already hint at this in somewhat analogous contexts.61 These purely humanitarian signifiers of right authority would nonetheless have to be complemented by several other criteria, such as whether the groups in question were politically motivated, had a mandate from a recognizable population to engage in violence, and were, for example, internally non-oppressive (representative and accountable, for example). Considerations of the legitimacy of the cause pursued by various NSAGs might also inform whether they have a broad authority to detain from the point of view of IHRL — something which is of course anathema to the logic of equality when it comes to obligations under IHL, but need not be so when it comes to questions of privilege. At any rate, I am less convinced than others62 that the equality of belligerents in terms of privileges is a necessary condition for the proper operation of IHL.63 The tendency of international legal practice to treat various NSAGs differently based on their international ‘acceptability’64 suggests that the question of ‘right authority’ may have never entirely left international legal thinking, even if it has ceased to be explicit.

58

Gould 2009. Lieblich 2016. 60 As Kenneth Watkin put it ‘… one aspect of just war theory, fighting for a State as the “right authority” in order to have legitimacy, hangs like a dark cloud over the attempts to reach consensus on the legal regulation of non-international armed conflicts.’ Watkin 2012, pp 5–6. 61 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the protection of victims of non-international armed conflicts, opened for signature 8 June 1977, 1125 UNTS 609, entered into force 7 December 1978 (AP II), Article 1 (NIACs are defined as involving ‘dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.’) 62 Heffes 2015. 63 Kreb and Mégret 2014. 64 Bilkova 2010. 59

190

F. Mégret

Third, an almost entirely different tack on these issues might emerge from envisaging them from the angle of critical legal pluralism and the notion of a ‘jurisgenerative moment’ in human rights.65 The question of whether NSAGs have the authority to detain – and more broadly to engage in armed conflict – is often marred by reductionist definitions of the applicable legal regime as being necessarily State-derived, whether domestic or international, which is particularly problematic when dealing with actors who, precisely, have largely sought to emancipate themselves from that framework. The question is whether NSAGs are ‘bound’ by such law, or whether one should be open to the existence of an alternative, non-international and perhaps even a non-State centered normativity. As it turns out, the dominant legal approaches as to why NSAGs are bound by restraints in warfare (i.e. the approaches that emerge from the Western concept of legality) may also be those that are most out of touch with the normative reality of those groups.66 As we have seen, positive international law on the issue is characterized more by its silence than anything else, making it tempting to reach beyond international law for elements of policy, history or theory that might help to renew our thinking on the matter, although this also comes with the risk of losing touch with what is specifically legal. An alternative route would be to consider that the existing normative practices of NSAGs already count as a form of law, regardless of whether it is positive law as recognized by the majority of international lawyers. Imagine, for example, that the commander of a NSAG issues a detailed order regulating the detention of captured State agents. He or she may even do so by reference to international law but also quite possibly by reference to some local, indigenous or religious practice that is not part of either international or domestic law. The document is then treated as legal and binding by all members of the group. The commander might even recruit a legal adviser trained in IHL to assist in its enforcement. Let us imagine then that many NSAGs were to replicate this, even in uncoordinated ways, leading to a rich corpus of non-state practice on both the means and ends of detention in armed conflicts. What would international lawyers make of that practice? Most would probably dismiss it politely as interesting but essentially irrelevant to international law. Notwithstanding, to refuse to take such practices seriously would be to miss an important practical opportunity that is emerging from certain groups’ commitments to abide by some norms.67 This has long been the basis for initiatives such as ‘Geneva Call,’ a Swiss non-governmental organization that seeks to engage NSAGs to respect IHL via unilateral ‘deeds of commitment’.68 More deeply, one might consider that law emerges not, or at least not only, from top-down rules based on the recognition of legal personality, but from the real-life normative practices of

65 66 67 68

Carpenter and Riley 2014. Sivakumaran 2006. Sassòli 2010. See Chap. 15 by Heffes in the present volume.

7 Detention by Non-State Armed Groups in NIACs

191

self-constituted subjects of the law. In other words, it is arguably the desire to be a subject and the willingness to act like one that makes the subject, from at least some defensible concept of law. NSAGs that propose to detain governmental forces humanely and according to the laws of war, perhaps even according to the standards of IACs, could thus be seen as pulling themselves up by their own bootstraps into a status that may be denied to them by the State they are fighting but that they can to an extent hold themselves accountable to. The recognition that NSAGs are increasingly involved in the development of international law,69 and the perception that an international law that fails to take that participation into account would be illegitimate,70 can further enrich our understanding of when NSAGs can lawfully detain. Indeed, we are probably already past the point where only the official subjects of international law are considered to have any normative effect on the regulation of armed conflict.

References Aeschlimann A (2005) Protection of detainees: ICRC action behind bars. International Review of the Red Cross 87:83–122. Arnold R, Quénivet N (2008) International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law. Martinus Nijhoff/Brill, Boston. Bangerter O (2011) Reasons why armed groups choose to respect international humanitarian law or not. International Review of the Red Cross 93:353–384. Bassiouni C (2008) The New Wars and the Crisis of Compliance with the Law of Armed Conflict by Non-State Actors. The Journal of Criminal Law and Criminology (1973-) 98:711–810. Bellal A, Casey-Maslen S (2011) Enhancing compliance with international law by armed non-state actors. Goettingen Journal of International Law 3:175–197. Bellinger III J B, Padmanabhan V M (2011) Detention operations in contemporary conflicts: four challenges for the Geneva Conventions and other existing law. American Journal of International Law 105:201–243. Bilkova V (2010) Treat Them as They Deserve - Three Approaches to Armed Opposition Groups under Current International Law. Human Rights & International Legal Discourse 4:111–126. Bongard P (2008) Engaging Armed Non-State Actors on Humanitarian Norms: The Experience of Geneva Call and the Landmine Ban. In: Geneva Call, PSIO and UNIDIR. Exploring Criteria and Conditions for Engaging Armed Non-State Actors to Respect Humanitarian Law and Human Rights Law. Conference Report. Geneva, 4–5 June 2007, pp 108–123. Bongard P, Somer J (2011) Monitoring armed non-state actor compliance with humanitarian norms: a look at international mechanisms and the Geneva Call Deed of Commitment. International Review of the Red Cross 93:673–706. Buckley OM (2011) Unregulated Armed Conflict: Non-State Armed Groups, International Humanitarian Law, and Violence in Western Sahara. North Carolina Journal of International Law and Commercial Regulation 37:793–845. Carpenter KA, Riley AR (2014) Indigenous Peoples and the Jurisgenerative Moment in Human Rights. California Law Review 102:173–234.

69 70

Roberts and Sivakumaran 2012. Ryngaert 2010.

192

F. Mégret

Clapham A (2006) Human Rights Obligations of Non-State Actors. Oxford University Press, Oxford. Clapham A (2017) Detention by Armed Groups under International Law. International Law Studies 93:2–44. Crawford E (2007) Unequal before the Law: The Case for the Elimination of the Distinction between International and Non-international Armed Conflicts. Leiden Journal of International Law 20:441–465. Deeks AS (2007) Administrative Detention in Armed Conflict Security Detention: The International Legal Framework. Case Western Reserve Journal of International Law 40:403– 436. Dormann K (2012) Detention in non-international armed conflicts. International Law Studies 88:347–366. Doswald-Beck L, Vité A (1993) International humanitarian law and human rights law. International Review of the Red Cross 33:94–119. Droege C (2007) The interplay between international humanitarian law and international human rights law in situations of armed conflict. Israel Law Review 40:310–355. Engle E (2009) Third Party Effect of Fundamental Rights (Drittwirkung). Hanse Law Review 5:165–173. Geneva Academy of International Humanitarian Law and Human Rights (2016) Human Rights Obligations of Armed Non-State Actors: An Exploration of the Practice of the UN Human Rights Council (Academy In-Brief No. 7), Geneva. Goodman R (2015) Authorization versus Regulation of Detention in Non-International Armed Conflicts. International Law Studies Series 91:155–170. Gould HD (2009) What happened to punishment in the just war tradition? In: Heinze E and Steele B (eds.) Ethics, Authority, and War: Non-State Actors and the Just War Tradition. Palgrave Macmillan, New York, pp. 73–100. Hagan J, Wenona R-R (2015) Human Rights and International Humanitarian Law. In: Blau J et al. (eds.) The Leading Rogue State: The U.S. and Human Rights, 1st Edition. Routledge, New York. Heffes E (2015) Detentions by Armed Opposition Groups in Non-International Armed Conflicts: Towards a New Characterization of International Humanitarian Law. Journal of Conflict and Security Law 20:229–250. Hessbruegge JA (2005) Human Rights Violations Arising from Conduct of Non-State Actors. Buffalo Human Rights Law Review 11:21–88. Higgins N (2009) The regulation of armed non-state actors: promoting the application of the laws of war to conflicts involving national liberation movements. Human Rights Brief 17:12–18. Hill-Cawthorne L, Akande D (2014) Does IHL Provide a Legal Basis for Detention in Non-International Armed Conflicts? http://www.ejiltalk.org/does-ihl-provide-a-legal-basis-fordetention-in-non-international-armed-conflicts/. Accessed 15 December 2018. Hofmann C (2006) Engaging non-state armed groups in humanitarian action. International Peacekeeping 13:396–409. International Committee of the Red Cross (2016) Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the FIeld, 2nd edn. https://ihl-databases.icrc.org/ihl/full/GCI-commentary. Accessed 20 August 2018. Kaplan O (2013) Nudging Armed Groups: How Civilians Transmit Norms of Protection. Stability. https://www.stabilityjournal.org/articles/10.5334/sta.cw/. Accessed 15 December 2018. Kleffner J (2011) The applicability of international humanitarian law to organized armed groups. International Review of the Red Cross 93:443–461. Kretzmer D (2009) Rethinking the Application of IHL in Non-International Armed Conflicts. Israel Law Review 42:8–45. Kreb C, Mégret F (2014) The regulation of non-international armed conflicts: Can a privilege of belligerency be envisioned in the law of non-international armed conflicts? International Review of the Red Cross 96:29–66.

7 Detention by Non-State Armed Groups in NIACs

193

La Rosa A-M, Wuerzner C (2008) Armed groups, sanctions and the implementation of international humanitarian law. International Review of the Red Cross 90:327–341. Lacroix P et al. (2011) Engaging armed non-state actors in mechanisms for protection. Forced Migration Review 37:10–12. Lieblich E (2016) Internal Jus ad Bellum. Hastings Law Journal 67(3):687–748. Mačák K (2014) No Legal Basis under IHL for Detention in Non-International Armed Conflicts? A Comment on Serdar Mohammed v. Ministry of Defence. http://www.ejiltalk.org/no-legalbasis-under-ihl-for-detention-in-non-international-armed-conflicts-a-comment-on-serdarmohammed-v-ministry-of-defence/. Accessed 15 December 2018. Mastorodimos K (2016) Armed Non-State Actors in International Humanitarian and Human Rights Law: Foundation and Framework of Obligations, and Rules on Accountability. Routledge, London/New York. Mégret F (2006) Jus In Bello as Jus Ad Bellum. American Society of International Law Proceedings 100:121–123. Mégret F (2013) Apology of Utopia; Some Thoughts on Koskenniemian Themes, with Particular Emphasis on Massively Institutionalized International Human Rights Law. Temple International and Comparative Law Journal 27:455–497. Mégret F (2014) Should Rebels Be Amnestied? In: Stahn C et. al. (eds) Jus Post Bellum: Mapping the Normative Foundations. Oxford University Press, Oxford, pp 519–541. Meron T (1989) Human Rights and Humanitarian Norms as Customary Law. Clarendon Press, Oxford. Milanovic M (2007) Lessons for human rights and humanitarian law in the war on terror: comparing Hamdan and the Israeli Targeted Killings case. International Review of the Red Cross 89:373–393. Milanović M (2009) A norm conflict perspective on the relationship between international humanitarian law and human rights law. Journal of Conflict and Security Law 14:459–483. Milanovic M (2014) High Court Rules that the UK Lacks IHL Detention Authority in Afghanistan. http://www.ejiltalk.org/high-court-rules-that-the-uk-lacks-ihl-detention-authority-inafghanistan. Accessed 15 December 2018. Murray D (2016) Human Rights Obligations of Non-State Armed Groups. Hart, Oxford. Murray D (2017) Non-State Armed Groups, Detention Authority in Non-International Armed Conflict, and the Coherence of International Law: Searching for a Way Forward. Leiden Journal of International Law 30:435–456. Ohlin J (2015) The Combatant’s Privilege in Asymmetric and Covert Conflicts. Yale Journal of International Law 40:337–392. Orakhelashvili A (2008) The interaction between human rights and humanitarian law: fragmentation, conflict, parallelism, or convergence? European Journal of International Law 19:161–182. Sandoz Y et al. (1987) Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949. ICRC and Martinus Nijhoff Publishers, Geneva. Provost R (2002) International Human Rights and Humanitarian Law. Cambridge University Press, Cambridge. Roberts A, Sivakumaran S (2012) Lawmaking by nonstate actors: Engaging armed groups in the creation of international humanitarian law. Yale Journal of International Law 37:107–152. Rodenhäuser T (2015) International legal obligations of armed opposition groups in Syria. International Review of Law 2:1–16. Rona G (2015) Is There a Way Out of the Non-International Armed Conflict Detention Dilemma? International Law Studies 91:32–59. Ryngaert C (2010) Imposing international duties on non-state actors and the legitimacy of international law. In: Noortmann M, Ryngaert C (eds) Non-State Actor Dynamics in International Law: From Law-Takers to Law-Makers. Routledge, London, pp 69–90.

194

F. Mégret

Sari A (2014) Sorry Sir, We’re All Non-State Actors Now: A Reply to Hill-Cawthorne and Akande on the Authority to Kill and Detain in NIAC. http://www.ejiltalk.org/sorry-sir-wereall-non-state-actors-now-a-reply-to-hill-cawthorne-and-akande-on-the-authority-to-kill-anddetain-in-niac. Accessed 15 December 2018. Sassòli M (2010) Taking armed groups seriously: Ways to improve their compliance with international humanitarian law. Journal of International Humanitarian Legal Studies 1:5–51. Sassòli M (2011) Introducing a sliding-scale of obligations to address the fundamental inequality between armed groups and states? International Review of the Red Cross 93:426–431. Sassòli M, Olson L (2008) The relationship between international humanitarian and human rights law where it matters: admissible killing and internment of fighters in non-international armed conflicts. International Review of the Red Cross 90:599–627. Simma B (1999) NATO, the UN and the Use of Force: Legal Aspects. European Journal of International Law 10:1–22. Sivakumaran S (2006) Binding Armed Opposition Groups. International and Comparative Law Quarterly 55:369–394. Sivakumaran S (2011) Lessons for the law of armed conflict from commitments of armed groups: identification of legitimate targets and prisoners of war. International Review of the Red Cross 93:463–482. Somer J (2007) Jungle justice: passing sentence on the equality of belligerents in non-international armed conflict. International Review of the Red Cross 89:655–690. Steinhoff D (2009) Talking to the Enemy: State Legitimacy Concerns with Engaging Non-State Armed Groups Note. Texas International Law Journal 45:297–322. Tomuschat C (2010): Human Rights and International Humanitarian Law. European Journal of International Law 21:15–23. Watkin K (2009) Opportunity Lost: Organized Armed Groups and the ICRC Direct Participation in Hostilities Interpretive Guidance Forum: Direct Participation In Hostilities: Perspectives on the ICRC Interpretive Guidance. New York University Journal of International Law and Politics 42:641–696. Watkin K (2012) Small wars: the legal challenges. International Law Studies 88:3–12.

Frédéric Mégret is an Associate-Professor, Faculty of Law, McGill University. Dawson Scholar.

Chapter 8

Human Rights Obligations of Non-State Armed Groups: An Assessment Based on Recent Practice Jean-Marie Henckaerts and Cornelius Wiesener

Contents 8.1 Introduction........................................................................................................................ 8.2 Equal Application of International Humanitarian Law to Non-State Armed Groups ............................................................................................................................... 8.3 State-Centricity of Human Rights Treaties....................................................................... 8.4 Reasons for Affirming or Denying Human Rights Obligations of Non-State Armed Groups ............................................................................................................................... 8.5 Practice Supporting the Existence of Human Rights Obligations of Non-State Armed Groups in Control of Territory ......................................................................................... 8.6 Required Level of Control ................................................................................................ 8.7 Sources and Content of Human Rights Obligations of Non-State Armed Groups ............................................................................................................................... 8.8 International Responsibility and Monitoring Mechanisms ............................................... 8.9 Conclusion ......................................................................................................................... References ..................................................................................................................................

196 197 200 202 208 213 214 219 222 222

Abstract This chapter examines whether and to what extent non-State armed groups can be considered bound by human rights law. To that end, it contrasts the traditional State-centricity of human rights law with the legal framework of international humanitarian law, which applies to States as well as to armed groups. It examines the arguments put forward in favour and against the application of human rights law to non-state groups. Drawing on actual practice, in particular from international bodies, the chapter argues that such groups are at least bound by J.-M. Henckaerts (&) ICRC, 19 avenue de la Paix, 1202 Geneva, Switzerland e-mail: [email protected] C. Wiesener iCourts, KU JUR, Njalsgade 76, 2100 Copenhagen, Denmark e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 E. Heffes et al. (eds.), International Humanitarian Law and Non-State Actors, https://doi.org/10.1007/978-94-6265-339-9_8

195

196

J.-M. Henckaerts and C. Wiesener

human rights law when they have control over territory, allowing them to exercise government-like functions. The precise origin of such obligations and exactly which human rights they would include requires further research. The existing human rights machinery and related bodies are ill-equipped to hold armed groups accountable for their human rights violations and provide victims with effective remedies. Hence, there is a need for further research and political will to close this accountability gap.




Keywords Human Rights Humanitarian Law Control Protection Gap Accountability




8.1





Armed Groups
Territorial

Introduction

Most armed conflicts today involve non-State armed groups, rather than being fought exclusively between States. Such groups may take the form of rival ‘governments’ claiming to represent the State or secessionist forces. They may also represent the interests of various political, ethnic or religious groups in a climate of State collapse and ethnic or sectarian violence. Recent examples from the Central African Republic, the Democratic Republic of Congo (DRC), Iraq, Libya, Mali, Somalia, South Sudan, Sri Lanka, Syria, and Yemen show that such confrontations frequently last much longer than inter-State wars. As a consequence, thousands of residents of a State in conflict often live for years in areas effectively controlled by non-State armed groups. While international humanitarian law (IHL) applies, where relevant, to the conduct of hostilities between the belligerents, it has little to offer on matters of daily life and public governance in areas not affected by active fighting, let alone when the armed conflict has come to an end. These issues are primarily regulated by international human rights law. This chapter therefore examines whether and to what extent non-State armed groups can be considered bound by human rights law.1 As a preliminary consideration, it discusses the applicability of IHL to armed groups. It then contrasts this with the traditional State-centricity of human rights law, examining arguments in favour of and against extending human rights obligations to armed groups. It tries to match these arguments with examples from actual practice, in particular from international bodies, including the United Nations Security Council (UNSC), international and regional human rights bodies, as well as international courts and tribunals. On this basis, it examines whether armed groups can now be considered

1

This is an updated version of a previous publication by the same authors in 2013 and was written with a view to examining which, if any, evolutions have taken place on this subject since then: Henckaerts and Wiesener 2013. Parts of the original article are reprinted here with permission from Edward Elgar Publishing (https://www.elgaronline.com/).

8 Human Rights Obligations of Non-State Armed Groups

197

bound by human rights law as a matter of customary international law or even treaty interpretation. However, it should be noted that this chapter only addresses this question as a matter of principle and does not examine the practical application of human rights law obligations by non-State armed groups and their interaction with IHL, should such obligations be considered to exist.

8.2

Equal Application of International Humanitarian Law to Non-State Armed Groups

IHL is premised, generally speaking, on the principle of equality of the parties to the conflict. This implies that the rules of IHL are binding on both parties to the conflict, whether State parties or non-State parties. This principle applies both to applicable treaty and customary IHL. Under humanitarian treaty law, Article 3 common to the four Geneva Conventions of 1949 explicitly states that it is binding on ‘each Party’ to a conflict not of an international character (i.e. non-international armed conflicts (NIACs)), including non-State armed groups. The approach adopted in common Article 3 is to apply a minimum of basic rules to all conflicts that are ‘not of an international character’. This ‘minimal’ approach is supplemented by the encouragement for the parties to conclude ‘special agreements’ that extend the application of some or all parts of the Geneva Conventions (1949) to the conflict. Another important element is the explicit recognition that the application of common Article 3 does not affect the legal status of the parties to the conflict.2 The model of common Article 3 is followed in the Hague Convention (1954) for the protection of cultural property.3 In addition, several other IHL treaties explicitly state that they apply to all parties in NIACs,4 or simply that they apply in NIACs while including obligations for all

2

For a more detailed commentary on common Article 3, see ICRC 2016, paras 351–907. Convention for the Protection of Cultural Property in the Event of Armed Conflict, opened for signature 14 May 1954, 249 UNTS 240, entered into force 7 August 1956 (UNESCO Convention), Article 19. 4 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, as amended 3 May 1996, 35 ILM 1206, entered into force 3 December 1998 (Mines Protocol), Article 1(3); 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, opened for signature 10 October 1980, 1342 UNTS 137, entered into force 2 December 1983 (CCCW), Amendment Article 1, 21 December 2001, Article 1(3); Protocol on Explosive Remnants of War, opened for signature 28 November 2003, 2399 UNTS 100, entered into force 12 November 2006, Article 1(3). 3

198

J.-M. Henckaerts and C. Wiesener

parties.5 These treaties also include a statement to the effect that their application does not affect the legal status of the parties to the conflict.6 In Additional Protocol II to the Geneva Conventions of 1977 (AP II), all references to ‘parties to the conflict’ were deleted in the last days of the negotiations as part of a simplification process aimed at achieving the adoption of AP II. Nevertheless, it is clear that AP II does not alter the basic premise of IHL. The 1987 ICRC Commentary on AP II asserts this to be the case: The deletion from the text of all mention of ‘parties to the conflict’ only affects the drafting of the instrument, and does not change its structure from a legal point of view. All the rules are based on the existence of two or more parties confronting each other. These rules grant the same rights and impose the same duties on both the established government and the insurgent party, and all such rights and duties have a purely humanitarian character.7

A textual reading of AP II also makes it clear that it applies to all parties to the conflict, including non-State armed groups, because it requires such groups to ‘exercise such control over a part of [a High Contracting Party’s] territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol’.8 The requirement that armed groups be able to implement AP II presupposes or implies that such groups are bound by it. Different approaches have been advanced to explain the binding effect of IHL on non-State armed groups. All these explanations have merit, although none of them seems capable of providing a full and unique answer to the question.9 The main arguments have been summarized in the 2016 ICRC Commentary on common Article 3: that an entity claiming to be representing a State or parts of it, in particular by exercising effective sovereignty over it, enters into the international obligations of that State; that following the ratification of the Geneva Conventions by a State, common Article 3 becomes part of domestic law and therefore binds all individuals under the State’s jurisdiction, including members of a non-State armed group; that common Article 3 and other humanitarian law treaties intended to bind non-State Parties to non-international armed conflicts are international treaty provisions lawfully creating obligations for third parties, similar to how treaties can, under certain circumstances, create obligations for States not

5

Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, opened for signature 26 March 1999, 2253 UNTS 172, entered into force 9 March 2004 (UNESCO Protocol), Article 22(1). 6 Mines Protocol, above n. 4, Article 1(6); UNESCO Protocol, above n. 5, Article 22(6); CCCW, above n. 4, Article 1(6). 7 Sandoz et al. 1987, para 4442. 8 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 609, entered into force 7 December 1978 (AP II), Article 1(1). 9 For an overview, see Sivakumaran 2006.

8 Human Rights Obligations of Non-State Armed Groups

199

party to them; that when a State ratifies a treaty, it does so on behalf of all individuals under its jurisdiction, who can therefore become the addressees of direct rights and obligations under international law; that it ‘derives from the fundamental nature of the rules [common Article 3] contains and from their recognition by the entire international community as being the absolute minimum needed to safeguard vital humanitarian interests’; and that non-State armed groups can also consent to be bound by common Article 3, for example through the issuance of a unilateral declaration or special agreement between Parties to an armed conflict.10

With respect to customary law, the 2005 study published under the auspices of the ICRC identified 161 IHL rules of customary international law and found that most customary rules applicable in NIACs bind all parties to the conflict.11 There are a few exceptions related to State responsibility and reparation, compliance and enforcement where the rules applicable in NIACs were found, on the basis of current practice, to be binding on States only.12 A question that remains open is whether and to what extent non-State armed groups can contribute to the formation of customary IHL applicable to them.13 In conclusion, today it is generally accepted that non-State armed groups parties to an armed conflict are bound by IHL, both treaty law and customary law. Also, in 2004, the Appeals Chamber of the Special Court for Sierra Leone (SCSL) stated that ‘it is well settled that all parties to an armed conflict, whether states or non-state actors, are bound by international humanitarian law, even though only states may become parties to international treaties’.14

10

ICRC 2016, para 507. Henckaerts and Doswald-Beck 2005. Of the 161 IHL rules identified as customary, 13 apply in international armed conflicts (IACs) only (rules 3, 4, 41, 49, 51, 106–108, 114, 130, 145–147), 2 rules apply in NIACs only (rules 148 and 159) and the remaining 146 rules apply in any type of armed conflict. Among the latter category, 138 apply to all parties to the conflicts, leaving 8 rules applicable to States only (rules 141, 143, 144, 149–150, 157–158, and 161). 12 Ibid., rules 141 (legal advisers), 143 (teaching to civilian population), 144 (ensuring respect erga omnes), 149 (State responsibility), 150 (reparation), 157 (universal jurisdiction), 158 (investigation and prosecution of war crimes), and 161 (cooperation in the investigation and prosecution of war crimes). 13 Ibid., p xlii. For a more elaborate analysis, see, e.g., Lie 2003. 14 SCSL, Prosecutor v. Norman, Decision on Preliminary Motion Based on Lack of Jurisdiction, 31 May 2004, Case No. SCSL-2004-14-AR72(E) (Child Recruitment), para 22. See also CRC Protocol, below n. 17, Article 4(1). 11

200

8.3

J.-M. Henckaerts and C. Wiesener

State-Centricity of Human Rights Treaties

Unlike several major IHL treaties, the main human rights treaties only address States as duty holders. This is true for both the universal,15 and the regional treaties.16 A possible exception is the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict of 2000 (CRC Protocol) where it provides that ‘armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years’.17 It has been noted, however, that the use of the term ‘should’ in the context of this provision suggests that the article does not impose a legal duty on non-State armed groups.18 Rather, the legal duty seems

15 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171, entered into force 23 March 1976 (ICCPR), Article 2(1) (‘Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant’); International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3, entered into force 3 January 1976 (ICESCR), Article 2(1); Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195, entered into force 4 January 1969 (CERD), Articles 2–7; Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1979, 1249 UNTS 13, entered into force 3 September 1981 (CEDAW), Articles 2–16; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85, entered into force 26 June 1987 (CAT), Articles 2–16; Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3, entered into force 2 September 1990 (CRC), Article 2(1); Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, opened for signature 18 December 1990, 2220 UNTS 3, entered into force 1 July 2003, Article 7; Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3, entered into force 3 May 2008, Article 4(1). 16 European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221, entered into force 3 September 1953 (ECHR), Article 1 (‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention’); American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS 123, entered into force 18 July 1978 (ACHR), Article 1(1); African Charter on Human and Peoples’ Rights, opened for signature 26 June 1981, 1520 UNTS 217, entered into force 21 October 1986 (ACHPR), Article 1. 17 Optional Protocol to the Convention of the Rights of the Child on Children in Armed Conflict, opened for signature 25 May 2000, 2173 UNTS 222, entered into force 12 February 2002 (CRC Protocol), Article 4(1). See also the preamble (‘Condemning with the gravest concern the recruitment, training and use within and across national borders of children in hostilities by armed groups distinct from the armed forces of a State, and recognizing the responsibility of those who recruit, train and use children in this regard’). On the recruitment of children by armed groups, see also African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, opened for signature 23 October 2009, entered into force 6 December 2012 (Kampala Convention), Article 7(5)(e). More specifically on the Kampala Convention: Fortin 2017, pp 232– 38. 18 See Ryngaert 2008, pp 364–65 (who also finds support in the travaux préparatoires) and Sivakumaran 2006, p 249 (‘Views on the question are mixed, but the majority (and, it is suggested, better) view is that the provision is binding on states alone and does not purport to bind

8 Human Rights Obligations of Non-State Armed Groups

201

addressed to States parties, which are enjoined to ‘take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalize such practices’.19 At any rate, the CRC Optional Protocol is a sui generis human rights treaty and not illustrative of human rights treaty law in general. It deals specifically with the involvement of children in armed conflict and builds upon the earlier incorporation of IHL into the Convention on the Rights of the Child (1989).20 Because the universal and regional human rights treaties are framed to address States’ obligations, their monitoring bodies have generally not looked beyond the acts and conduct of States. Indeed, there is some early practice from the monitoring bodies denying the applicability of human rights treaties to non-State armed groups.21 In 1991, the Inter-American Commission on Human Rights held that: The American Convention concerns the duties of States vis-à-vis the rights and freedoms of persons, the full and free exercise of which they must not only respect but also guarantee. The entire system for protecting human rights is designed on the basis of the State’s acknowledgement of itself as a party to a fundamental legal contract on the matter of human rights and it is against the State that complaints alleging violations of the rights upheld in the Convention are brought.22

The Commission affirmed this position in a later report on Colombia.23 As a result, it has only addressed the responsibility of States for acts of non-State armed groups that abuse human rights, but not the responsibility of the groups themselves.24 In another case, the Inter-American Commission dealt with the Japanese Embassy hostage crisis in 1996–1997, during which members of the Túpac Amaru

armed groups’). But see Clapham 2010, pp 102–103. Compare Bellal et al. 2011, p 65 (‘Looking at the wording of that article [Article 4], it appears that the direct legal obligation is imposed, through paragraph 2, on states parties and not on armed groups. That argument should, though, be considered in the light of the recent practice of the UN Security Council in relation to the situations of children in armed conflict’, emphasis in original). 19 CRC Protocol, above n. 17, Article 4(2). 20 CRC, above n. 15, Article 38 (still entirely addressed to ‘States Parties’). 21 UN Secretary-General 1998, para 59 (‘armed groups, operating at different levels of sophistication and organization, are often responsible for the most grave human rights abuses. Yet these groups are not, strictly speaking, legally bound to respect the provisions of international human rights treaties which are instruments adopted by States and can only be formally acceded to or ratified by States. The supervisory mechanisms established by these treaties are not empowered to monitor or take action on reports on the activities of armed groups’; UN Commission on Human Rights 1996, Annex, paras 46–47; see also Zegveld 2002, pp 39–42. 22 IACHR 1991, Chapter V, para II. 23 IACHR 1999, pp 75–76, paras 13–14; see also IACHR, Abella v. Argentina, Decision, 30 October 1997, Case No. 11.137, para 174 (‘Unlike human rights law which generally restrains only the abusive practices of State agents, Common Article 3’s mandatory provisions expressly bind and apply equally to both parties to internal conflicts, i.e., government and dissident forces’). 24 This subject is beyond the scope of this chapter. For further information, see in particular Zegveld 2002, pp 164–219; see also Ryngaert 2008, pp 358–62.

202

J.-M. Henckaerts and C. Wiesener

Revolutionary Movement (MRTA) – a left-wing armed group that was fighting the Peruvian government at that time – took hundreds of hostages at the residence of the Japanese ambassador in Lima (Peru), where they held many of them for four months.25 In its decision, the Commission denounced the hostage-taking by the MRTA as a violation of humanitarian law,26 while assessing the killing of the hostage-takers by government forces (during the successful rescue operation) solely on the basis of human rights law.27 At this point, we can conclude that international human rights treaty law is structured fundamentally differently than IHL. This explains the traditional view, as expressed by Moir: the humanitarian laws of internal armed conflict are equally binding upon the government and insurgents, and can also … apply to a conflict between two parties, neither of which is the government of the State concerned. There is therefore a degree of reciprocity as far as the application of humanitarian law is concerned. By contrast, human rights obligations are binding on governments only, and the law has not yet reached the stage whereby, during internal armed conflict, insurgents are bound to observe the human rights of government forces, let alone those of opposing insurgents.28

However, this traditional view still leaves open the question whether insurgents could have an obligation to respect the human rights of the populations living under their control. We now turn to a more detailed examination of the arguments against and in favour of applying human rights law to non-State armed groups.

8.4

Reasons for Affirming or Denying Human Rights Obligations of Non-State Armed Groups

A number of arguments have been advanced to consider armed groups bound by human rights law. First, it has been argued that if only State forces had to observe – possibly more restrictive – human rights law in the course of a NIAC, there would be an imbalance between the State and the non-State armed group, running counter to the principle of equality. This principle, however, formally only applies to IHL, and the question is whether and to what extent it can apply to human rights obligations in armed conflict. Nevertheless, the ‘equality argument’ led the Guatemalan Commission on Historical Clarification to apply IHL and human rights law to both government and rebel forces:

25 26 27 28

IACHR, Cruz Sánchez v. Peru, Merits, 31 March 2011, Report No. 66/10, Case No. 12.444. Ibid., para 132. Ibid., paras 118–61. Moir 2002, p 194.

8 Human Rights Obligations of Non-State Armed Groups

203

The Commission also applied the common principles of international human rights law and international humanitarian law to the violent acts committed by the guerrillas, in order to give equal treatment to the Parties, since the dominant trend today is to consider that human dignity is equally offended against, whoever commits the acts that violate it.29

A more important argument in favour of imposing human rights obligations on non-State armed groups pertains to the fact that IHL does not govern all of their activities.30 When there is an armed conflict, many acts or omissions of armed groups in relation to certain rights are not covered by IHL, or even international criminal law, for example in relation to some civil and political rights (e.g. freedom of assembly, expression and movement), certain economic, social and cultural rights (e.g. right to food and work), gender equality and minority rights.31 This is particularly the case, as no IHL of ‘occupation’ exists for NIACs. Hence, issues related to food, work, property or security in territory controlled by a non-State armed group are not regulated under IHL governing NIACs to the same extent as they are in case of belligerent occupation under the law of IACs.32 It has been pointed out that most conflicts last for years or decades and that ‘international humanitarian law was not meant to regulate the everyday life of people living in areas under the control of ANSAs [armed non-state actors] over such an extended period of time’.33 This may lead to gaps in the legal protection for the populations concerned. These protection gaps can be closed by recourse to human rights law as an additional set of obligations binding non-State armed groups, at least those meeting certain requirements, in particular control over territory. Thus, since the early 1990s numerous resolutions, especially from the UNSC, have addressed human rights violations committed by non-State armed groups and their obligations under human rights law.34 This has been done either by calling directly on such groups, even naming them explicitly, or indirectly by addressing ‘all parties’ to the conflict. When calling on non-State armed groups to respect their obligations under international law, the UNSC has usually combined references to IHL and human rights law. Even if certain safeguards are similar under both legal regimes, the UNSC has nonetheless gone beyond what is required under IHL as such. For instance, it called on all parties to the conflict in Côte d’Ivoire to ‘ensure

29

Comisión para el Esclarecimiento Histórico 1999, p 46, para 76 (authors’ translation and emphasis added). 30 See, in particular, Fortin 2017, pp 27–68 (discussing the added value of human rights law, especially in relation to governance and law enforcement activities performed by non-State armed groups in territories under their control, where everyday life often continues). 31 Constantinides 2010, p 94. Even if such acts or omissions were materially covered by IHL, they would probably need to have a nexus with the armed conflict in order to fall within the remit of IHL. 32 Sivakumaran 2011, pp 243–44 (‘Nevertheless, it is difficult to comprehend that, once territory falls under the control of a non-state armed group, international humanitarian law has little or nothing to offer’). 33 Bellal et al. 2011, p 74; see also Fortin 2016, pp 161–75. 34 Tomuschat 2004; Constantinides 2010; Burniske et al. 2017.

204

J.-M. Henckaerts and C. Wiesener

freedom of the press and unlimited access to information’35 and to ‘guarantee the security and freedom of movement of all Ivorian nationals’.36 With regard to gender equality in Afghanistan when the Taliban were in power, the UNSC demanded ‘that the Afghan factions put an end to discrimination against girls and women’.37 In 2000, the UNSC expressed its concern at the ‘continued restrictions on their access to health care, to education and to employment outside the home, and about restrictions on their freedom of movement and freedom from intimidation, harassment and violence’.38 In addition, in some circumstances IHL may not, or no longer, govern the acts of non-State armed groups at all, namely when the situation does not qualify as an armed conflict. This may be the case because the requirements of organization and intensity are not yet or no longer met, e.g. because the conflict has come to an end following a lasting cessation of armed confrontations without real risk of resumption. Where non-State armed groups continue to control territory after the end of an armed conflict, their actions would not be governed by IHL.39 In such a situation, the territorial State might not have any means to prevent the perpetration of human rights abuses by non-State armed groups. The populations concerned would be placed in a situation whereby the groups controlling the territory in which they reside would have no legally binding obligation to respect their human rights. With regard to internal disturbances and tensions that fall short of armed conflict, the Institut de Droit International resolved in 1999: To the extent that certain aspects of internal disturbances and tensions may not be covered by international humanitarian law, individuals remain under the protection of international law guaranteeing fundamental human rights. All parties are bound to respect fundamental rights under the scrutiny of the international community.40

A practical example of where IHL did not apply can be found in the work of the Guatemalan Commission on Historical Clarification. The Chair of the Commission, Professor Tomuschat, explains: Not to subject insurgent movements to any obligation owed to the international community before an armed conflict may be found to exist would leave them exclusively under the authority of domestic law, favouring them, but also discriminating against them at the same time. It was one of the great challenges of the Guatemalan Historical Clarification Commission to determine the legal yardstick by which conduct of the different guerrilla groups could be measured even in times when one could hardly speak of an armed conflict.41

35

UN Security Council 2004. UN Security Council 2006, para 27. 37 UN Security Council 1998, para 12. 38 UN Security Council 2000a. 39 There are, of course, a number of continuing obligations with regard to persons deprived of their liberty. See AP II, above n. 8, Article 2(2), referring to the continued applicability of Articles 5–6. 40 Institut de Droit International 1999, para X. 41 Tomuschat 2003, p 261, emphasis added. 36

8 Human Rights Obligations of Non-State Armed Groups

205

Another example is the 2014 report of the International Commission of Inquiry on the Central African Republic, where it considered that IHL was not applicable to possible atrocities committed between March and December 2013, due to a significant lull in fighting.42 For that period, the Commission therefore analysed ‘alleged abuses only in terms of violations of international human rights law and crimes against humanity under the Rome Statute’.43 The Commission found human rights law directly applicable to non-State armed groups in control of territory.44 There are, however, also a number of arguments for rejecting the extension of human rights obligations to actors other than states. First, while IHL is premised on the principle of equality of belligerents, human rights law is based on a vertical relationship between the State and the individual. Although non-State armed groups may negatively affect the enjoyment of human rights of individuals, such acts would only amount to ‘abuses’ of human rights as opposed to ‘violations’ of human rights law. According to this view, only States can commit human rights violations, either through their own acts or by failing to fulfil their positive obligations with regard to abuses by non-State armed groups. Indeed, it is a State’s prerogative and responsibility to prevent and remedy such abuses. This view is premised on the assumption that State authorities are powerful enough to enforce the law everywhere on their territory. Examples from failed States and countries affected by armed conflict, however, show that this may not always be the case.45 An example of the traditional, State-centred concept of human rights law, whereby only States are deemed responsible for human rights ‘violations’, can be found in a 1996 report of a meeting of Special Rapporteurs and other experts of the UN Commission on Human Rights. This report stressed that with regard to acts of non-State armed groups a distinction should be made between such ‘groups as human rights violators and the adverse effects their action might have on the enjoyment of human rights’.46 The UNSC has sometimes used the terms ‘abuse’ and ‘violation’ side by side. For instance, in a 2010 resolution on the situation in Somalia, it strongly condemned: all acts of violence, abuses and human rights violations committed against civilians, including women and children, and humanitarian personnel, in violation of international humanitarian law and human rights law, stressing the responsibility of all parties in Somalia to comply fully with their obligations in this regard and reaffirming the importance of the fight against impunity.47

42 43 44 45 46 47

UN Security Council 2014a, paras 94–101. Ibid., para 97. Ibid., para 107. Constantinides 2010, p 93. UN Commission on Human Rights 1996, Annex, para 44. UN Security Council 2010, emphasis added.

206

J.-M. Henckaerts and C. Wiesener

Similarly, regarding the situation in the DRC in 2011, the UNSC used both terms seemingly in a synonymous manner: 13. Demands that all armed groups, in particular Forces Démocratiques de Libération du Rwanda (FDLR) and the Lord’s Resistance Army (LRA), immediately cease all forms of violence and human rights abuses against the civilian population in the Democratic Republic of the Congo, in particular against women and children, including rape and other forms of sexual abuse, and demobilize; … 18. … encourages the Congolese authorities to promote lasting reconciliation in the Democratic Republic of the Congo by pursuing these efforts to combat impunity against all perpetrators of human rights and international humanitarian law violations, including those committed by any illegal armed groups or elements of the Congolese security forces.48

Yet, in its more recent resolutions on the situation in the DRC,49 Iraq,50 Mali,51 Syria,52 and Yemen,53 the UNSC appears more cautious and only refers to ‘abuses’ of human rights alongside ‘violations of international humanitarian law’. This has led some to question the claim that non-State armed groups are bound by human rights law.54 In contrast, Rodenhäuser has suggested that ‘reference to human rights “abuses” instead of “violations” does not necessarily mean that armed groups are not legally bound by IHRL; however, it could suggest a difference between obligations of states and those of armed groups’.55 It has also been argued that extending human rights obligations beyond States might dilute the responsibilities of States.56 The 2006 Report of the Working Group on Enforced or Involuntary Disappearances on the situation in Colombia, for example, reflects this concern. The Report considered the question whether the

48

UN Security Council 2011 emphasis added. UN Security Council 2015a, para 10 (‘… strongly condemns all armed groups operating in the region and their violations of international humanitarian law as well as other applicable international law, and abuses of human rights including attacks on the civilian population …’, emphasis added). 50 UN Security Council 2015b (‘ISIL has committed serious human rights abuses, and violations of international humanitarian law …’, emphasis added). 51 UN Security Council 2012, para 5 (‘Demands that all groups in the north of Mali cease all abuses of human rights and violations of international humanitarian law …’, emphasis added). 52 UN Security Council 2014c (‘Strongly condemning the continuing widespread violations of human rights and international humanitarian law by the Syrian authorities, as well as the human rights abuses and violations of international humanitarian law by armed groups …’, emphasis added). 53 UN Security Council 2014b, para 27 (‘Expresses its concern over reported serious human rights abuses and violence against civilians in both the Northern Yemen and Southern Governorates…’, emphasis added). 54 See, for instance, Burniske et al. 2017. 55 Rodenhäuser 2018, p 157. 56 See, for instance, Ryngaert 2008, pp 376–77. 49

8 Human Rights Obligations of Non-State Armed Groups

207

concept of enforced disappearance could be applied to the actions of non-State armed groups: 48. Although the inclusion of non-State actors acting without the support or consent of the Government may at first glance look like an advancement of the law, in the sense that it protects more than the limited definition of the Declaration, it is the opinion of the Working Group that enforced disappearance is a ‘State crime’ (as opposed to kidnapping). Although in other cases of violations of human rights the inclusion of non-State actors indeed offers more protection to the victims (i.e. in the case of discrimination or labour or environmental human rights), in the case of enforced disappearance such inclusion dilutes the responsibility of the State. 49. For that same reason, the Working Group resists accepting the official Colombian attitude to ‘disappearances’, linking the definition of the phenomenon to or even equating it with ‘kidnappings’. To accept this definition would amount to diluting or even ousting State responsibility for acts of ‘disappearances’. The Working Group made it a point to emphasize that ‘disappearances’ are a State responsibility, while ‘kidnappings’ are things one attributes to non-State individuals, gangs or criminal networks. The Working Group also took pains to condemn both acts of ‘disappearances’ and ‘kidnappings’, irrespective of their perpetrators, as reprehensible.57

However, the extension of human rights obligations to actors other than the territorial State does not necessarily displace or dilute the State’s responsibility under human rights law. The responsibility of different actors for violations of human rights law is not mutually exclusive, but can be complementary. The European Court of Human Rights (ECtHR) has confirmed this in the Ilaşcu case, concerning the responsibility of Moldova under the European Convention on Human Rights of 1950 (ECHR) with regard to the acts of the separatist authorities of Transnistria, a non-State actor. The finding that the conduct of the latter was attributable to Russia did not prevent the ECtHR from holding that Moldova continued to have positive obligations under the ECHR.58 Hence, a fortiori, where no third State is involved, the responsibility of a non-State actor would equally not displace or dilute the territorial State’s responsibility under human rights law. Another reason why States have been reluctant to acknowledge the existence of obligations under human rights law for non-State armed groups is the concern that this could be seen as granting such groups legitimacy, recognition or status under international law, and therefore undermine the sovereignty of the State. This concern runs parallel to a similar concern about the application of IHL to such groups. However, legitimacy plays perhaps an even greater role in human rights law, which requires that interferences with rights pursue a legitimate aim and have a legal basis.59 In IHL, this concern has been addressed by formally acknowledging, 57

UN Commission on Human Rights 2006b. ECtHR, Ilaşcu et al. v Moldova and the Russian Federation, Judgement, 8 July 2004, Application No. 48787/99, paras 300–94. Given that the Court attributed the conduct of the authorities of Transnistria to Russia, it did not have to examine whether the separatist regime was itself bound by human rights law, including the ECHR. 59 Legitimate aims include: national security, public safety, public order, public health or morals and the protection of the rights and freedoms of others. 58

208

J.-M. Henckaerts and C. Wiesener

starting in common Article 3, that the application of IHL does not affect the status of the parties to the conflict.60 The above-mentioned CRC Protocol and the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa of 2009 (Kampala Convention) have adopted the same approach.61 This shows that it continues to be possible to overcome this issue and to regulate the obligations of non-State armed groups in treaty law, while recognizing that it does not affect their status.62 A 2006 report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, similarly states: It is increasingly understood, however, that the human rights expectations of the international community operate to protect people, while not thereby affecting the legitimacy of the actors to whom they are addressed. The Security Council has long called upon various groups that Member States do not recognize as having the capacity to formally assume international obligations to respect human rights.63

Finally, an important argument which considers human rights as applicable to non-State armed groups – and at the same time a criterion for such applicability – is that they may act as de facto authorities in areas under their control. This argument has gained increasing support in recent practice, and it will be analysed below.

8.5

Practice Supporting the Existence of Human Rights Obligations of Non-State Armed Groups in Control of Territory

In 1993, the UN Truth Commission on El Salvador held that an armed group – the Frente Farabundo Martí para la Liberación Nacional (FMLN) – could have obligations under human rights law in areas under their control. In this respect, the Commission stated:

60 A similar provision has been included in the following treaties: UNESCO Convention, above n. 3, Article 19(4); UNESCO Protocol, above n. 4, Article 22(6); Mines Protocol, above n. 4, Article 1(6); CCCW, above n. 4, Article 1(6) as amended. 61 CRC Protocol, above n. 17, Article 4(3); Kampala Convention, above n. 17, Article 7(1). 62 See also Institut de Droit International 1999, para II (‘All parties to armed conflicts in which non-State entities are parties, irrespective of their legal status … have the obligation to respect international humanitarian law as well as fundamental human rights. The application of such principles and rules does not affect the legal status of the parties to the conflict and is not dependent on their recognition as belligerents or insurgents’). 63 UN Commission on Human Rights 2006a, para 27.

8 Human Rights Obligations of Non-State Armed Groups

209

However, it must be recognized that when insurgents assume government powers in territories under their control, they too can be required to observe certain human rights obligations that are binding on the State under international law. This would make them responsible for breaches of those obligations.64

Control over territory as a criterion for binding non-State armed groups to human rights law is also implicit in some of the resolutions of the UNSC, given that most, if not all, groups addressed in such resolutions were arguably in control of some territory. Moreover, some of the resolutions specifically spell out this fact. For instance, in 2000 the UNSC condemned ‘the continuing grave violations of the human rights of women and girls, including all forms of discrimination against them, in all areas of Afghanistan, particularly in areas under the control of the Taliban’.65 The UNSC further stressed ‘the responsibility of the Taliban for the well-being of the population in the areas of Afghanistan under its control’.66 The emphasis on the control of territory is even more obvious in numerous resolutions issued with regard to the situation in the DRC in the early 2000s. In 2001, the UNSC expressed ‘its grave concern at the repeated human rights violations throughout the Democratic Republic of the Congo in particular in the territories under the control of the rebel groups’.67 In 2002, the UNSC reminded all parties ‘that they must abide by international humanitarian standards and ensure respect for human rights in the sectors they control’.68 In a resolution adopted in 2002, the UNSC also stressed the fact that the groups acted as the de facto authority: 4. … reiterates that it holds the Rassemblement Congolais pour la Democratie-Goma, as the de facto authority, responsible to bring to an end all extrajudicial executions, human rights violations and arbitrary harassment of civilians in Kisangani, and all other areas under RCD-Goma’s control …; 5. Condemns the exploitation of ethnic differences in order to incite or carry out violence or human rights violations, … and calls on the de facto authorities in the regions affected to ensure the protection of civilians and the rule of law.69

As noted above, the UNSC’s more recent practice has been less clear as to whether and under which circumstances non-State armed groups may have human rights obligations.70 UN expert bodies have, however, explicitly and consistently stressed the importance of territorial control. Indeed, numerous reports of

64

UN Security Council 1993, Annex, p 20, emphasis added. UN Security Council 2000b. 66 UN Security Council 2000c, preamble. 67 UN Security Council 2001, para 5. 68 UN Security Council 2002c. 69 UN Security Council 2002d, paras 4–5; see also UN Security Council 2002a; and UN Security Council 2002b (‘that the RCD-GOMA must ensure an end to all violations of human rights and to impunity in all areas under its control’). 70 See, in particular, resolutions (2012–15) on the DRC, Iraq, Mali, Syria, and Yemen, cited above n. 49–53. 65

210

J.-M. Henckaerts and C. Wiesener

international expert panels and commissions as well as special rapporteurs or representatives support the application of human rights to non-State armed groups that have control over territory. For instance, in its 2007 report to the UNSC, the Panel of Experts on Sudan came to the following conclusions: Although it is the primary responsibility of the Government of the Sudan to guarantee the human rights of its citizens and to protect them from any transgression, the different armed opposition movements also bear responsibility in areas under their control … Members of the SLA/MM armed groups have consistently committed grave violations of human rights in areas where the armed group has a presence.71

In his report on the situation of human rights in Sudan in 2002, the Special Rapporteur ‘urged the SPLM to actively take responsibility to meet the needs of the people living in areas under its control, including in terms of health and education, particularly where peace has been established’.72 The 2004 report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions also stressed the requirement of territorial control for applying human rights law obligations to non-State armed groups: The traditional approach of international law is that only Governments can violate human rights and thus, such armed groups are simply committing criminal acts. And indeed this may be an accurate characterization. In reality, however, that is often not the end of the matter and in some contexts it may be desirable to address the activities of such groups within some part of the human rights equation. This could mean addressing complaints to them about executions and calling for respect of the relevant norms. This may be both appropriate and feasible where the group exercises significant control over territory and population and has an identifiable political structure (which is often not the case for classic ‘terrorist groups’).73

In the same vein, a report by several special rapporteurs and representatives concerning their mission to Lebanon and Israel in the wake of the 2006 conflict considered the exercise of territorial control a key requirement for human rights obligations on the part of Hezbollah: The Security Council has long called upon various groups which Member States do not recognize as having the capacity to do so to formally assume international obligations to respect human rights. It is especially appropriate and feasible to call for an armed group to respect human rights norms when it exercises significant control over territory and population and has an identifiable political structure.74

71 UN Security Council 2007, paras 282 and 330, emphasis added. Compare with the earlier UN Security Council 2005, paras 172–74 (mentioning the human rights obligations of the Sudanese government, while addressing the obligations of the insurgents in Darfur solely in terms of international humanitarian law). 72 UN Commission on Human Rights 2002, para 91. 73 UN Commission on Human Rights 2004, para 76. 74 UN Human Rights Council 2006a, para 19. A subsequent report by the Commission of Inquiry on Lebanon did not explicitly discuss whether Hezbollah had control over territory, although it

8 Human Rights Obligations of Non-State Armed Groups

211

Likewise, according to a 2006 report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, on Sri Lanka stated that: [I]t is especially appropriate and feasible to call for an armed group to respect human rights norms when it ‘exercises significant control over territory and population and has an identifiable political structure’ … The international community does have human rights expectations to which it will hold the LTTE, but it has long been reluctant to press these demands directly if doing so would be to ‘treat it like a State’.75

These conclusions were confirmed by the Panel of Experts on Accountability in Sri Lanka. In its 2011 report, the panel stated: With respect to the LTTE, although non-state actors cannot formally become party to a human rights treaty, it is now increasingly accepted that non-state groups exercising de facto control over a part of a State’s territory must respect fundamental human rights of persons in that territory. Various organs of the United Nations, including the Security Council, have repeatedly demanded that such actors respect human rights law.76

In 2009, the combined report of nine special rapporteurs and representatives on the situation in Gaza concluded, with respect to Hamas, that ‘non-State actors that exercise government-like functions and control over a territory are obliged to respect human rights norms when their conduct affects the human rights of the individuals under their control’.77 Similarly, the 2009 Goldstone report on the 2008-2009 conflict in Gaza also emphasized the relevance of territorial control: In the context of the matter within the Mission’s mandate, it is clear that non-State actors that exercise government-like functions over a territory have a duty to respect human rights.78

The work of the Commission of Inquiry on Libya provides another example. In its report in 2011, the Commission stated: Although the extent to which international human rights law binds non-state actors remains contested as a matter of international law, it is increasingly accepted that where non-state groups exercise de facto control over territory, they must respect fundamental human rights of persons in that territory. The Commission has taken the approach that since the NTC has been exercising de facto control over territory akin to that of a Governmental authority, it will examine also allegations of human rights violations committed by its forces.79

During the follow-up discussion of this report at the UN Human Rights Council in June 2011, a number of States claimed that non-State armed groups were not

confirmed that it had obligations under human rights law: UN Human Rights Council 2006b, para 67. 75 UN Commission on Human Rights 2006a, para 26. 76 UN Secretary-General 2011, para 188, emphasis added. 77 UN Human Rights Council 2009a, para 22. 78 UN Human Rights Council 2009b, para 305, emphasis added. 79 UN Human Rights Council 2011b, para 72, emphasis added.

212

J.-M. Henckaerts and C. Wiesener

bound by human rights law.80 This did not, however, prevent the International Commission of Inquiry on the Central African Republic from making the following statement in its 2014 final report to the UNSC: Debates that took place in the late part of the twentieth century as to whether such non-state actors are nevertheless bound by the standards of international human rights law, have today been replaced by a general understanding that non-state groups that exercise de facto control over territory must respect human rights in their activities.81

The same position can be found in more recent reports on Gaza,82 Syria,83 and Yemen.84 Similarly, the 2016 Commentary on the First Geneva Convention of 1949 published by the ICRC states: The question of whether and to what extent human rights law applies to non-State armed groups is not settled. At a minimum, it seems accepted that armed groups that exercise territorial control and fulfil government-like functions thereby incur responsibilities under human rights law.85

Finally, most scholars also seem to agree that non-State armed groups are bound by human rights law when they are in control of territory.86 80 Among others, Argentina, Chile and Lebanon, see UN Human Rights Council 2011a, p 114, para 209. 81 UN Security Council 2014a, para 107, emphasis added and references omitted. 82 UN Human Rights Council 2015, para 45 (‘With respect to the authorities in Gaza, it is worth recalling that non-State actors that exercise government-like functions and control over a territory are obliged to respect human rights norms when their conduct affects the human rights of the individuals under their control’, emphasis added). 83 UN Human Rights Council 2012b, p 47, Annex II, para 10 (‘Non-state actors and IHRL: Non-state actors cannot formally become parties to international human rights treaties. They must nevertheless respect the fundamental human rights of persons forming customary international law (CIL), in areas where such actors exercise de facto control’, emphasis added). See also the previous report, UN Human Rights Council 2012a, para 106 (‘human rights obligations constituting peremptory international law (ius cogens) bind States, individuals and non-State collective entities, including armed groups’). 84 UN Human Rights Council 2016, para 10 (‘It is increasingly accepted that non-State actors that exercise government-like functions and de facto control over a territory must respect human rights standards when their conduct affects the human rights of the individuals under their control’, emphasis added). See also UN Security Council 2016, paras 143–150 (stating that all parties to the conflict have violated international human rights law, referring to Houthi-Saleh forces in the north and pro-Hadi forces in the south). 85 ICRC 2016, Article 3, para 517. 86 See e.g. Rodenhäuser 2018, pp 159–92 (distinguishing between ‘Groups Exercising Quasi-Governmental Authority in Defined Territory’ and ‘Groups Exercising De Facto Control over Territory and Population’); Fortin 2017, pp 172–76 (drawing largely on the principle of effectiveness and engagements with de-facto authorities to theorise this normative claim, pp 240– 71); Murray 2016, pp 120–54 (basing the claim largely on the de-facto control theory; even extending it to situations where the group has no exclusive territorial control but the ability to carry out international crimes and other erga omnes violations in a sustained manner, pp 146–50); Bellal 2016, pp 26–30; Mastorodimos 2016, pp 139–204; Clapham 2014, pp 786–802. For the opposite view, see Ronen 2013, pp 47–48 (‘[A]t present, customary international human rights law does not

8 Human Rights Obligations of Non-State Armed Groups

8.6

213

Required Level of Control

A further issue still requires clarification, namely what level of control over territory would be required for a non-State armed group to incur human rights obligations. The answer may be the same or similar as the level of control required for AP II to apply in cases of armed conflict.87 AP II requires ‘control over a part of its [State] territory as to enable them [organized non-State armed groups] to carry out sustained and concerted military operations and to implement this Protocol’. By contrast, from the UN practice, it appears that non-State armed groups are considered to have human rights obligations when the territory under their control enable them to perform quasi-governmental functions. Whether this is the same standard or not remains to be clarified. In this respect, it goes without saying that the territory in question needs to be inhabited; otherwise there would be no beneficiaries and no protection gap. Yet, it does not necessarily have to be particularly large or under the non-State armed group’s control for an extended time. This should, however, be distinguished from, for example, a hostage-taking situation in a building, where State security forces may be able to reclaim the building and free the hostages, or from a non-State armed group’s mere passage through State territory. In other words, only those armed groups that control territory to the exclusion of the regular State government and are in a position to govern that area effectively would be obliged to observe human rights law.88 The picture becomes more challenging where an armed group has control over territory – thereby triggering the applicability of human rights – but performs acts outside that territory. In its 2011 report, the Panel of Experts on Accountability in Sri Lanka stated: The Panel has not considered LTTE abuses outside the conflict zone under international human rights law because of the uncertainty surrounding whether non-state actors have human rights obligations beyond the territories they control.89

In such a scenario, one could draw a parallel with situations where States act outside their own territory. The extra-territorial application of human rights law remains a controversial issue; but it is at least recognised in situations, when States

seem to extend beyond states, nor, obviously, does treaty law. Tentative steps, however, are discernible towards the inclusion of NSAs in the list of duty-holders. A review of practice in this respect indicates that effective territorial control and the exercise of public functions are not sufficient for states to consider an entity bound by international human rights law. Other normative and institutional factors are also at play’). 87 AP II, above n. 8, Article 1(1). 88 Another question is whether control over territory can also be shared with other non-State armed groups. Provided that the regular State government is effectively displaced, this scenario would still involve a protection gap for those present in that territory. 89 UN Secretary-General 2011, para 243.

214

J.-M. Henckaerts and C. Wiesener

exercise control over territory or persons abroad, or when they carry out lawfully obtained public powers of the host state.90 Yet, it is increasingly accepted in scholarly writing that negative human rights obligations (i.e. the duty to respect) apply everywhere at all times, while the scope of positive obligations (i.e. the duty to protect or fulfil) is highly context-specific and depends on the level of control.91 Applied to the context of non-State armed groups, this would mean that such groups would have to comply with the negative obligations, even when operating outside their usual strongholds. The duty to protect and fulfil, by contrast, would only arise in areas under the control of that group. This gradual approach to applying human rights law to non-State armed groups takes their organisational uniqueness duly into account, rather than imposing unrealistic duties on them.92 Whether UN expert bodies will adopt this approach in the future, remains to be seen.

8.7

Sources and Content of Human Rights Obligations of Non-State Armed Groups

While it seems increasingly accepted that certain non-State armed groups have human rights obligations, it is still another matter to determine the content of those obligations. In order to ascertain the full range of human rights binding on armed groups, it is necessary to identify their exact source. It is worth mentioning here that the International Court of Justice (ICJ) has held that the UNSC can create obligations for non-State actors.93 Further, as outlined above, the UNSC has in the past condemned certain acts by non-State armed groups and called on them to abide by human rights standards, sometimes even on specific issues such as women’s rights. However, those pronouncements are too general, and often unclear and inconsistent to provide guidance on the precise content of the rights that would bind them. Rather, the practice of the UNSC and UN expert bodies (e.g. commissions of inquiry and special rapporteurs or representatives) can be seen as contributing to the crystallisation of a rule that, under certain

90 See ECtHR, Al-Skeini v. United Kingdom, Judgement, 7 July 2011, Application no. 55721/07, paras 133–40. 91 Especially, Milanovic 2011, pp 209–27. This approach seems also implicit in some of the more recent ECHR jurisprudence, e.g. ECtHR, Jaloud v. The Netherlands, Judgement, 20 November 2014, Application No. 47708/08, para 152 (involving the shooting of a civilian at a checkpoint manned by Dutch forces in Iraq). See also: IACHR, Alejandre Jr et al. v Cuba, Decision, 29 September 1999, Case 11.589, para 25 (involving two civilian aircraft shot down by a Cuban military jet in international airspace). 92 For a similar approach: Rodenhäuser 2018, pp 159–206; and Murray 2016, pp 172–202. 93 ICJ, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 22 July 2010, ICJ Reports 2010, p 403, para 116. See also ILA Committee on Non-State Actors 2014, p 6.

8 Human Rights Obligations of Non-State Armed Groups

215

circumstances, non-State armed groups have human rights obligations under customary law. According to Murray, non-State armed groups are subjects of international law and as such are bound by customary law, including human rights law.94 One issue with this argument is that the legal personality of such groups exists first and foremost for the purpose of applying IHL. That legal personality may therefore not exist before the beginning of an armed conflict or after it has come to an end. For other areas of international law, such as human rights law in peacetime, the legal personality of such groups would therefore depend on their status as de-facto regimes, i.e. non-State entities with control of territory.95 Another issue is that customary law rules may differ according to which subjects of international law are concerned.96 Indeed, several areas of customary law are not relevant for partial subjects of international law, such as international organisations, non-State armed groups, de-facto regimes or individuals. In order for these entities to be bound (ratione personae) by a specific customary rule originally designed for States, they must be capable of falling within the material scope (ratione materiae) of the customary rule in question. As far as human rights law is concerned, it is the ability to exercise vertical authority over a population in a State-like manner that makes certain non-State armed groups (usually acting as de-facto regimes) bound by the relevant set of customary rules. In other words, like newly independent States, they are born into an existing legal order, the rules of which they have to accept. The International Commission of Inquiry for Syria thus recognised that: Non-state actors cannot formally become parties to international human rights treaties. They must nevertheless respect the fundamental human rights of persons forming customary international law …97

Hence, it considered customary law a primary source of human rights standards applicable to non-State armed groups. According to the International Law Association’s Statement of Principles Applicable to the Formation of General Customary International Law: [A] rule of customary international law is one which is created and sustained by the constant and uniform practice of States and other subjects of international law in or impinging upon their international legal relations, in circumstances which give rise to a legitimate expectation of similar conduct in the future.98

In line with this principle, Philip Alston, then UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, referred specifically to the

94

Murray 2016, pp 83–88. Frowein 2013. 96 Sassòli 2016. 97 UN Human Rights Council 2012b, p 47, Annex II, para 10 (emphasis added). 98 ILA Committee on the Formation of Customary (General) International Law 2000, Principle 1 (i), emphasis added. 95

216

J.-M. Henckaerts and C. Wiesener

‘demand of the international community’, when outlining the source of human rights obligations binding on the LTTE in Sri Lanka: [I]t remains subject to the demand of the international community, first expressed in the Universal Declaration of Human Rights, that every organ of society respect and promote human rights … The LTTE and other armed groups must accept that insofar as they aspire to represent a people before the world, the international community will evaluate their conduct according to the Universal Declaration’s ‘common standard of achievement’ … The LTTE should refrain from violating human rights, including those of non-LTTE-affiliated Tamil civilians. This includes in particular respect for the rights to freedom of expression, peaceful assembly, freedom of association with others, family life, and democratic participation, including the right to vote, respect for the rights to freedom of expression, peaceful assembly, freedom of association with others, family life, and democratic participation, including the right to vote.99

What exactly amounts to customary human rights law and whether it covers the entire Universal Declaration (1948) remains an open question.100 Other bodies consider non-State armed groups to be bound by the ‘general principles common to international human rights law’,101 or ‘the principles and rules of international law guaranteeing fundamental human rights’.102 The Panel of Experts on Accountability in Sri Lanka (2011) provided a more detailed list of applicable human rights, when it held in its 2011 report that: the LTTE was bound to respect the most basic human rights of persons within its power, including the rights to life and physical security and integrity of the person, and freedom from torture and cruel, inhuman or degrading treatment and punishment.103

The International Commission of Inquiry on the Central African Republic also referred specifically to violations of economic, social and cultural rights by both Seleka and anti-Balaka forces.104

99

UN Commission on Human Rights 2006a, paras 25, 27 and 85. See also his subsequent Mission to Philippines report, UN Human Rights Council 2008, para 5. 100 For a discussion of whether the Universal Declaration of Human Rights (1948) has attained the status of customary law or general principles, see Hannum 1995–1996; Simma and Alston 1992. 101 UN General Assembly 1999, Annex, para 127. 102 Institut de Droit International 1999, para IV. 103 UN Secretary-General 2011, para 188. 104 UN Security Council 2014a, paras 507–31. For a more detailed account of the applicable social, economic and cultural rights, see Giacca 2014, pp 230–72; Müller 2013, pp 289–90.

8 Human Rights Obligations of Non-State Armed Groups

217

The uncertainty as to the exact scope of the human rights obligations incurred by non-State armed groups can be overcome, in large part, when such groups make explicit commitments to abide by specific standards. Such commitments may also have an impact on the development of customary law in this regard.105 They can also be seen as creating legally binding obligations for the non-State armed groups concerned (and as providing an explanation for the binding nature of those obligations).106 These commitments may be part of peace agreements concluded between one or more non-State armed groups and the relevant State. The UN or third States often witness such peace agreements.107 Commitments by non-State armed groups have also been made unilaterally,108 for instance in the framework of the process of ‘deeds of commitment’ under the auspices of Geneva Call, an organization ‘dedicated to engaging armed non-State actors towards compliance with international humanitarian law and human right law’.109 Moreover, in the follow-up process of a number of thematic UNSC resolutions, e.g. on children in armed conflict, armed groups have committed themselves to certain rules and to implement action plans for the protection of specifically vulnerable groups. Furthermore, some reports by international bodies have documented such unilateral commitments, for instance in two reports on the situation in Libya and in Gaza.110 There is also increasing scholarly support for the position that non-State armed groups with territorial control are bound by the human rights treaty obligations of the territorial State.111 There is even some limited practice in support of this view.

105

For a discussion on the legal significance of the practice of non-State armed groups in the formation of customary law: Henckaerts and Doswald-Beck 2005, Introduction, p xlii (‘The practice of armed opposition groups, such as codes of conduct, commitment and other statements, does not constitute State practice as such. While such practice may contain evidence of the acceptance of certain rules in non-international armed conflicts, its legal significance is unclear’, emphasis added); UN International Law Commission 2014, para 45 (‘their actions are not “practice” for purposes of the formation or evidencing of customary international law’). 106 See, e.g., Zegveld 2002, pp 49–51 (‘there appears to be no legal rule which would prevent the representatives of an armed opposition group … from making agreements [in which they agree to be bound by human rights norms] with the established government that are valid on the international plane’.); Ryngaert 2008, pp 372–74; ICRC 2016, para 851. For further reading, see Corten and Klein 2011, pp 3–24 107 Constantinides 2010, p 109. These peace agreements have been well documented, although not all of them contain human rights commitments. See Bell 2000, pp 323–74. See also Zegveld 2002, pp 149–51. 108 On the question of whether non-State actors can bind themselves through unilateral acts in the same way as States, see ILA Committee on Non-State Actors 2016, paras 61–62. 109 For more information on Geneva Call, see Geneva Call n.d. 110 UN Human Rights Council 2011b, para 72; UN Human Rights Council 2015, paras 306–307. 111 Murray 2016, pp 164–69; Cullen and Wheatley 2013; Frowein 2013; Schoiswohl 2004, pp 191–300; Hessbruegge 2005, pp 40–41 (‘as an insurrectionary movement takes control over territory and establishes an administration, it therefore automatically assumes the human rights obligations resting on the territory’). In relation to IHL, see also Pictet 1952, pp 51–52.

218

J.-M. Henckaerts and C. Wiesener

In its 2001 Concluding Observations on the DRC, the Committee on the Rights of the Child condemned the: grave violations of the Convention within territory outside of the control of the Government of the State party and where armed elements … have been active … In this context, in addition to the responsibility of the State party, the Committee also emphasizes the responsibilities of several other States and certain other actors … for violations of some provisions of the Convention …112

Moreover, when the UN Human Rights Committee discussed the situation in Bosnia-Herzegovina in early 1992, one of its members stated that the Bosnian Serb authorities – a well-organised secessionist regime that controlled large areas of the then newly independent Bosnia and Herzegovina, eventually failing to secure full independence in the Dayton Accords – were bound by the International Covenant on Civil and Political Rights of 1966: Thus [they] might be asked to explain how they complied with the Covenant, not as a successor State, but as an authority in control of a territory.113

In General Comment 26, the UN Human Rights Committee developed this idea further: The rights enshrined in the Covenant belong to the people living in the territory of the State party. The Human Rights Committee has consistently taken the view, as evidenced by its long-standing practice, that once the people are accorded the protection of the rights under the Covenant, such protection devolves with territory and continues to belong to them, notwithstanding change in government of the State party …114

Also, the case of Kosovo provides an interesting parallel: as civil authority was exercised in Kosovo by the United Nations Interim Administration Mission in Kosovo (UNMIK), the UN Human Rights Committee invited UNMIK in 2004 to report on Kosovo under the ICCPR’s periodic review procedure.115 In 2017, however, rather than addressing the Kosovo authorities directly (following their unilateral declaration of independence in 2008), the Committee only recommended 112 UN Committee on the Rights of the Child 2001, para 155. See also UN Committee on the Elimination of all forms of Discrimination Against Women, para 18 (urging ‘non-State actors such as armed groups: (a) to respect women’s rights in conflict and post-conflict situations, in line with the Convention …’). 113 UN Human Rights Committee, Decision on State Succession to the Obligations of the Former Yugoslavia under the International Covenant on Civil and Political Rights – Separate Opinion by Mullerson. Reprinted (1993) European Human Rights Reports 15: 233, p 236. See also UN Commission on Human Rights 1989, para 68 (‘The territorial sovereignty of the Afghan Government is not fully effective since some provinces of Afghanistan are totally or partly in the hands of traditional forces. The responsibility for the respect of human rights is therefore divided. Even if the present state of affairs is considered as an emergency situation within the meaning of Article 4 of the International Covenant on Civil and Political Rights, a minimum of human rights and in any event the provisions of humanitarian law must be respected by all the parties involved in the conflicts’, emphasis added). 114 UN Human Rights Committee 1997, para 4. 115 UN Human Rights Committee 2004, para 3.

8 Human Rights Obligations of Non-State Armed Groups

219

that UNMIK cooperate with the ‘institutions in Kosovo’ in compiling the periodic report.116 The fact that almost all human rights treaties use the term ‘State’ may also be examined in the light of subsequent practice in the application of these treaties.117 Based on this approach, Murray argues that the object and purpose of human rights treaties is to restrict the power of vertical authority over people. Such authority was traditionally limited to States, but practice shows that non-State armed groups can perform similar functions where they are in control of territory. According to Murray, the practice of the UNSC, special rapporteurs and commissions of inquiry and certain treaty bodies may be seen as supporting an evolutionary interpretation of the State-centric treaty terms of various human rights conventions.118

8.8

International Responsibility and Monitoring Mechanisms

The question whether non-State armed groups have human rights obligations only refers to primary rules of international law. What is usually overlooked in most of the recent practice and scholarship are secondary rules of international law in relation to such groups, which are in their infancy. Indeed, it remains unclear how acts and omissions by individual members might be attributed to the non-State armed group to which they belong. The rules on attribution of conduct to States and international organisations differ considerably and, in some respects, are still controversial after an International Law Commission (ILC) drafting process stretching several decades.119 The fluid nature of many non-State armed groups, with shifting allegiances of different factions and the constant risk of break-ups into splinter groups or absorption into larger groups, makes attribution far more challenging than in relation to States and international organisations.120 Moreover, even where the responsibility of non-State armed groups for duly attributable violations of human rights law can be established, the consequences of such responsibility remain unclear, including the question whether such groups are obliged to provide full reparation along the same lines as States or international

116

UN Human Rights Committee 2017, para 3. Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331, entered into force 27 January 1980, Article 31(3)(b). For a more detailed discussion on subsequent practice in the application of treaties, see Nolte 2013, and the current work of the ILC on subsequent agreements and subsequent practice in relation to interpretation of treaties (Georg Nolte, Special Rapporteur). 118 Murray 2016, pp 164–169. 119 UN International Law Commission 2001; UN International Law Commission 2011. 120 ILA Committee on Non-State Actors 2014, pp 8–10. In relation to IHL, see: Henckaerts and Doswald-Beck 2005, rule 149 and the practice listed therein, and ICRC 2016, paras 890–92. 117

220

J.-M. Henckaerts and C. Wiesener

organisations.121 State responsibility clearly arises in cases where the non-State armed group becomes the new government or succeeds in creating a new State, in line with Article 10 of the ILC Draft Articles on State Responsibility (2001). Yet, power-sharing arrangements with the former government or other non-State armed groups may complicate the issue considerably.122 As stated above, existing treaty-based judicial or quasi-judicial bodies have largely refrained from making any findings on human rights violations by non-State armed groups. Whether these bodies will continue to engage in such interpretation in the future remains to be seen. Nonetheless, the ECtHR has on some occasions considered the actions of secessionist regimes. However, rather than addressing these regimes directly, it found their actions attributable to third States, based on fairly loose attribution criteria: Turkey for Northern Cyprus,123 Russia for Transnistria,124 and Armenia for Nagorno-Karabakh.125 It is likely that the Court will follow the same approach in pending or future cases on Abkhazia, South Ossetia and Eastern Ukraine (Donbas). In the recent case of Mozer v. Moldova and the Russian Federation, the Court distinguished the court system in Northern Cyprus from the one existing in Transnistria, a breakaway part of Moldova. It concluded that Transnistrian courts and other government bodies cannot order an arrest.126 This represents a challenge for non-State armed groups and de-facto regimes, if they wish to legislate and use the broad range of permissible limitations under human rights law. Since non-State armed groups are largely blocked from the existing treaty-based human rights machinery, it might be more useful to look for new judicial bodies. A recent suggestion to establish a World Court of Human Rights may be a way to fill this accountability gap.127 According to the Consolidated Statute, drafted by Kozma, Nowak and Scheinin,128 non-State entities could declare that they recognise the competence of the World Court to receive and examine individual

121 ILA Committee on Non-State Actors 2014, pp 10–11. In relation to IHL, see: Henckaerts and Doswald-Beck 2005, rule 149 and the practice listed therein. 122 Crawford 2013, p 179. 123 ECtHR, Loizidou v. Turkey, Judgement, December 1996, Application No. 15318/89, para 56. 124 ECtHR, Ilaşcu and Others v. Moldova and the Russian Federation, Judgment, 8 July 2004, Application No. 48787/99, paras 392–94. 125 ECtHR, Chiragov and Others v. Armenia, Judgement, 16 June 2015, Application No. 13216/ 05, paras 167–87. 126 ECtHR, Mozer v. Moldova and the Russian Federation, Judgement, 23 February 2016, Application No. 11138/10, paras 136–50. 127 Supported by an eminent panel of international lawyers, including Mary Robinson and Theodor Meron: Protecting Dignity: An Agenda for Human Rights, 2011 Report, Conclusions and Recommendations, p 41. http://graduateinstitute.ch/files/live/sites/iheid/files/sites/international_ law/shared/international_law/Prof_Clapham_website/docs/vsi/Panel-humanDignity_rapport2011. pdf. Accessed 25 April 2018 (link no longer available). 128 Ibid., pp 41–92.

8 Human Rights Obligations of Non-State Armed Groups

221

complaints involving alleged human rights violations against them.129 The Commentary to the Statute makes clear that the term ‘entity’ covers non-State armed groups.130 Whether the creation of a World Court of Human Rights with such a broad jurisdiction will ever materialise remains to be seen.131 In the absence of an effective complaint mechanism for human rights violations committed by non-State armed groups, international criminal law and its institutional framework, including the International Criminal Court (ICC), may provide the best avenue for a remedy. Indeed, ‘piercing the corporate veil’ of such groups by holding their leaders and other individual members criminally accountable for their acts seems to be an effective tool to enforce human rights (albeit indirectly and only partially) vis-à-vis such groups. According to the ICC, crimes against humanity do not require the involvement of States, but can be perpetrated by: groups of persons who govern a specific territory or … any organization with the capability to commit a widespread or systematic attack against a civilian population.132

Within the ICC, a special Victims Participation and Reparation Section handles the submissions of victims and provides them with adequate legal representation throughout the ICC proceedings. Further, Article 75(2) of the ICC Statute allows the ICC to ‘make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation’, which is paid through the ICC Trust Fund.133 This application of individual civil liability is an important tool to effectively remedy those victimised by international crimes. Lastly, measures taken by the UNSC against leaders, members or supporters of non-State armed groups responsible for serious violations of human rights law provide an additional possible remedy for the victims. This includes interim measures such as travel bans or freezing of assets as well as public shaming, regardless of the exact formulation adopted (i.e. human rights ‘abuses’ or ‘violations’).134

129

Ibid., p 58, Article 51. An earlier draft by Martin Scheinin included the possibility of making non-State actors subject to the jurisdiction of States Parties to the Statute directly accountable ‘even in the absence of an explicit declaration’, ibid., p 68, Commentary to Article 51. 130 Ibid., p 66, Commentary to Article 4 (‘But there is no doubt that this provision primarily aims at transnational corporations, international non-profit organizations, organized opposition movements and autonomous communities within States or within a group of States. An “Entity” does not necessarily have to be a juridical person recognized under domestic or international law. Finally, it is up to the Court to decide whether it has jurisdiction in relation to a particular “Entity” or not’, emphasis added). 131 For a critique of this ambitious plan, see Alston 2014. 132 ICC, Prosecutor v. Bemba, Decision on the Confirmation of Charges, 15 June 2009, ICC-01/ 05-01/08-424, para 81; ICC, Prosecutor v. Katanga and Ngudjolo, Decision on the Confirmation of Charges, 30 September 2008, ICC-01/04-01/07-717, para 396. For a comprehensive discussion, see Rodenhäuser 2018, pp 250–81. 133 For more information on the ICC Trust Fund, see ICC n.d. Trust Fund for Victims. 134 On the legal regime of UN sanctions, including limitations and due process safeguards that may apply, see van den Herik 2017.

222

8.9

J.-M. Henckaerts and C. Wiesener

Conclusion

As this chapter has tried to show, it is increasingly accepted that non-State armed groups have obligations, or at least responsibilities, under human rights law when they have control over territory allowing them to exercise de facto State functions. Indeed, there is a legitimate expectation by the international community – as reflected in the practice of the UNSC and UN expert bodies – that such groups abide by human rights standards. This requirement may be said to have become a norm of customary international law. Under another view, a similar conclusion can be reached through an evolutionary interpretation of existing human rights treaties, considering subsequent practice related to these treaties. But this argument remains to be confirmed by the human rights bodies that monitor compliance with them. The uncertainty as to the exact scope of the human rights obligations incurred by non-State armed groups and the extent to which they can make use of permissible limitations demands further research and probably further practice. A particularly important point is the degree of control required to trigger human rights obligations for non-State armed groups. Whether human rights law also binds groups when they perform acts outside the area they control is still far from clear. Drawing an analogy between such acts and the extra-territorial acts of States could lead to an affirmative answer for negative human rights obligations. However, neither international practice, nor most doctrine, seems to support the claim that human rights law binds non-State armed groups when they do not control any territory. Nevertheless, the protection gap that exists by excluding the application of human rights law to non-State armed groups in all circumstances is already significantly reduced by extending obligations to groups that control State territory. This is particularly the case with regard to activities not covered by IHL or situations outside of armed conflict, where IHL is not (or is no longer) applicable. From a victim’s perspective, these findings change very little: the human rights machinery with its courts and quasi-judicial bodies continues to be largely State-based. Accordingly, there is a need for further research and political will towards holding non-State armed groups accountable for their human rights abuses and violations and providing victims with effective remedies.

References Alston P (2014) Against a World Court for Human Rights. Ethics and International Affairs 28:197–212. Bell C (2000) Peace Agreements and Human Rights. Oxford University Press, Oxford. Bellal A (2016) Academy In-Brief on Human Rights Obligations of Armed Non-State Actors: An Exploration of the Practice of the UN Human Rights Council. https://www.geneva-academy. ch/joomlatools-files/docman-files/InBrief7_web.pdf. Accessed 15 November 2017.

8 Human Rights Obligations of Non-State Armed Groups

223

Bellal A et al. (2011) International Law and Armed Non-State Actors in Afghanistan. International Review of the Red Cross 93:47–79. Burniske J et al. (2017) HLS PILAC Briefing Report on Armed Non-State Actors and International Human Rights Law: An Analysis of the UN Security Council and UN General Assembly. https://dash.harvard.edu/handle/1/33117816. Accessed 15 November 2017. Clapham A (2010) Human Rights Obligations of Organized Armed Groups. In: Odello M, Beruto GL (eds) Non-State Actors and International Humanitarian Law Organized Armed Groups: A Challenge for the 21st Century. Franco Angeli, Milan, pp 102–108. Clapham A (2014) Focusing on Armed Non-State Actors. In: Clapham A, Gaeta P (eds) The Oxford Handbook of International Law in Armed Conflict. Oxford University Press, Oxford, pp 766–810. Comisión para el Esclarecimiento Histórico (1999) Guatemala, memoria del silencio. Oficina de Servicios para Proyectos de las Naciones Unidas, Guatemala. Constantinides A (2010) Human Rights Obligations and Accountability of Armed Opposition Groups: The Practice of the UN Security Council. Human Rights and International Legal Discourse 4:89–110. Corten O, Klein P (2011) Are Agreements between States and Non-State Entities Rooted in the International Legal Order? In: Cannizzaro E (ed) The Law of Treaties: Beyond the Vienna Convention. Oxford University Press, Oxford, pp 3–24. Crawford J (2013) State Responsibility: The General Part. Cambridge University Press, Cambridge. Cullen A, Wheatley S (2013) The Human Rights of Individuals in De Facto Regimes under the European Convention on Human Rights. Human Rights Law Review 13:691–728. Fortin K (2016) The Application of Human Rights Law to Everyday Civilian Life under Rebel Control. Netherlands International Law Review 63:161–81. Fortin K (2017) The Accountability of Armed Groups under Human Rights Law. Oxford University Press, Oxford. Frowein J (2013) De Facto Regime. In: Max Planck Encyclopaedia of Public International Law. http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1395. Accessed 2 May 2019. Geneva Call (n.d.) http://www.genevacall.org/. Accessed 31 October 2016. Giacca G (2014) Economic, Social, and Cultural Rights in Armed Conflict. Oxford University Press, Oxford. Hannum H (1995–96) The Status of the Universal Declaration of Human Rights in National and International Law. Georgia Journal of International and Comparative Law 25:287–395. Henckaerts JM, Doswald-Beck L (2005) Customary International Humanitarian Law – Volume I: Rules. Cambridge University Press, Cambridge. Henckaerts JM, Wiesener C (2013) Human Rights Obligations of Non-State Armed Groups: A Possible Contribution from Customary International Law? In: Kolb R, Gaggioli G (eds) Research Handbook on Human Rights and Humanitarian Law. Edward Elgar Publishing, Cheltenham/Northampton, pp 146–169. Hessbruegge JA (2005) Human Rights Violations Arising from the Conduct of Non-State Actors. Buffalo Human Rights Law Review 11:21–88. International Law Association Committee on Non-State Actors (2014) 3rd Report, Washington. International Law Association Committee on Non-State Actors (2016) Final Report, Johannesburg. International Law Association Committee on the Formation of Customary (General) International Law (2000) Statement of Principles Applicable to the Formation of General Customary International Law, Report of the Sixty-Ninth Conference, London. International Committee of the Red Cross (2016) Commentary on the First Geneva Convention, 2nd edn. Cambridge, Cambridge University Press. https://ihl-databases.icrc.org/ihl/full/GCIcommentary. Accessed 15 November 2017. International Criminal Court (n.d.) Trust Fund for Victims. http://www.trustfundforvictims.org. Accessed 15 November 2017.

224

J.-M. Henckaerts and C. Wiesener

Institut de Droit International (1999) The Application of International Humanitarian Law and Fundamental Human Rights in Armed Conflicts in which Non-State Entities are Parties, Berlin Resolution, 25 August 1999. Inter-American Commission on Human Rights (1991) Annual Report 1990-1991. OEA/Ser.L/V/ II.79.rev.1. Inter-American Commission on Human Rights (1999) Third Report on the Situation of Human Rights in Colombia. OEA/Ser.L/V/II.102, Doc 9, rev 1. Lie HH (2003) The Influence of Armed Opposition Groups on the Formation of Customary Rules of International Humanitarian Law, unpublished master’s thesis. University of Amsterdam, November 2003. Mastorodimos K (2016) Armed Non-State Actors in International Humanitarian and Human Rights Law: Foundation and Framework of Obligations, and Rules on Accountability. Ashgate, Farnham. Milanovic M (2011) Extraterritorial Application of Human Rights Treaties. Oxford University Press, Oxford. Moir L (2002) The Law of Internal Armed Conflict. Cambridge University Press, Cambridge. Müller A (2013) The Relationship between Economic, Social and Cultural Rights and International Humanitarian Law: An Analysis of Health Related Issues in Non-international Armed Conflicts. Martinus Nijhoff Publishers, Leiden. Murray D (2016) Human Rights Obligations of Non-State Armed Groups. Hart Publishing, Oxford. Nolte G (2013) Treaties and Subsequent Practice. Oxford University Press, Oxford. Pictet J (1952) Commentary on the First Geneva Convention, 1st edn. ICRC, Geneva. Rodenhäuser T (2018) Organizing Rebellion: Non-State Armed Groups under International Humanitarian Law, Human Rights Law, and International Criminal Law. Oxford University Press, Oxford. Ronen Y (2013) Human Rights Obligations of Territorial Non-State Actors. Cornell International Law Journal 46:21–50. Ryngaert C (2008) Human Rights Obligations of Armed Groups. Revue Belge de Droit International 41:355–81. Sandoz Y et al. (1987) Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949. ICRC and Martinus Nijhoff Publishers, Geneva. Sassòli M (2016), Two Fascinating Questions: Are all Subjects of a Legal Order Bound by the same Customary Law and Can Armed Groups Exist in the Absence of Armed Conflict? Book Discussion. EJIL Talk 4 November 2016. http://www.ejiltalk.org/book-discussion-daraghmurrays-human-rights-obligations-of-non-state-armed-groups-3. Accessed 15 November 2017. Schoiswohl M (2004) Status and (Human Rights) Obligations of Non-Recognized De Facto Regimes in International Law: The Case of ‘Somaliland’. Martinus Nijhoff Publishers, Leiden. Simma B, Alston P (1992) The Sources of Human Rights Law: Custom, Jus Cogens and General Principles. Australian Yearbook of International Law 12:82–108. Sivakumaran S (2006) Binding Armed Opposition Groups. International and Comparative Law Quarterly 55:369–94. Sivakumaran S (2011) Re-envisaging the International Law of Internal Armed Conflict. European Journal of International Law 22:219–264. Tomuschat C (2003) Human Rights: Between Idealism and Realism. Oxford University Press, Oxford. Tomuschat C (2004) The Applicability of Human Rights Law to Insurgent Movements. In: Fischer H et al. (ed) Krisensicherung und Humanitärer Schutz – Crisis Management and Humanitarian Protection. Berliner Wissenschafts-Verlag, Berlin, pp 573–91. UN Committee on the Elimination of all forms of Discrimination Against Women (2013) General Recommendation No 30 on Women in Conflict Prevention, Conflict and Post-Conflict Situations. UN Doc. CEDAW/C/GC/30. UN Committee on the Rights of the Child (2001) Report on the twenty-seventh session. UN Doc. CRC/C/108.

8 Human Rights Obligations of Non-State Armed Groups

225

UN Commission on Human Rights (1989) Report on the Situation of Human Rights in Afghanistan, Special Rapporteur Felix Ermacora. UN Doc. E/CN.4/1989/24. UN Commission on Human Rights (1996) Report of the Meeting of Special Rapporteurs/ Representatives Experts and Chairpersons of Working Groups of the Special Procedures of the Commission on Human Rights and of the Advisory Services Programme. UN Doc E/CN.4/ 1997/3. UN Commission on Human Rights (2002) Situation of Human Rights in the Sudan, Report of the Special Rapporteur, Gerhart Baum. UN Doc E/CN.4/2002/46. UN Commission on Human Rights (2004) Report of the Special Rapporteur, Extrajudicial, Summary or Arbitrary Executions, Philip Alston. UN Doc E/CN.4/2005/7. UN Commission on Human Rights (2006a) Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, Mission to Sri Lanka. UN Doc E/CN.4/2006/ 53/Add.5. UN Commission on Human Rights (2006b) Report of the Working Group on Enforced or Involuntary Disappearances, Mission to Colombia. UN Doc E/CN.4/2006/56/Add.1. UN General Assembly (1999) Guatemala Memory of Silence, Executive Summary Conclusions and Recommendations. UN Doc A/53/928. UN Human Rights Committee (1997) General Comment no 26: Issues Relating to the Continuity of Obligations to the ICCPR. UN Doc. CCPR/C/21/Rev.1/Add.8/Rev. 1. UN Human Rights Committee (2004) Concluding Observations: Serbia and Montenegro. UN Doc. CCPR/CO/81/SEMO. UN Human Rights Committee (2017) Concluding Observations: Serbia. UN Doc. CCPR/C/SRB/ CO/3. UN Human Rights Council (2006a) Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health; the Representative of the Secretary-General on Human Rights of Internally Displaced Persons; and the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, Mission to Lebanon and Israel. UN Doc A/HRC/2/7. UN Human Rights Council (2006b) Report of the Commission of Inquiry on Lebanon. UN Doc A/ HRC/3/2. UN Human Rights Council (2008) Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, Mission to Philippines. UN Doc A/HRC/8/3/Add.2. UN Human Rights Council (2009a) Combined Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, the Special Representative of the Secretary-General for Children and Armed Conflict, the Special Rapporteur on Violence against Women, its Causes and Consequences, the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, and on the Right to Non-Discrimination in this Context, the Special Rapporteur on the Right to Food, the Special Rapporteur on Extrajudicial, Arbitrary or Summary Executions, the Special Rapporteur on the Right to Education, and the Independent Expert on the Question of Human Rights and Extreme Poverty. UN Doc A/HRC/10/22. UN Human Rights Council (2009b) Report of the United Nations Fact-Finding Mission on the Gaza Conflict. UN Doc A/HRC/12/48. UN Human Rights Council (2011a) 17th session. UN Doc A/HRC/17/2. UN Human Rights Council (2011b) Report of the International Commission of Inquiry to Investigate all Alleged Violations of International Human Rights Law in the Libyan Arab Jamahiriya. UN Doc A/HRC/17/44. UN Human Rights Council (2012a) Report of the Independent International Commission of Inquiry on the Syrian Arab Republic. UN Doc A/HRC/19/69. UN Human Rights Council (2012b) Report of the Independent International Commission of Inquiry on the Syrian Arab Republic. UN Doc A/HRC/21/50.

226

J.-M. Henckaerts and C. Wiesener

UN Human Rights Council (2015) Report of the Independent Commission of Inquiry on Gaza. UN Doc A/HRC/29/CRP.4. UN Human Rights Council (2016) Report of the Office of the High Commissioner on Human Rights on the Situation of Human Rights in Yemen. UN Doc A/HRC/33/38. UN International Law Commission (2001) Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, Fifty-third session. UN Doc. A/56/10. UN International Law Commission (2011) Draft Articles on the Responsibility of International Organizations, with commentaries, Sixty-third session. UN Doc. A/66/10. UN International Law Commission (2014) Second Report on Identification of Customary International Law, Special Rapporteur Michael Wood. UN Doc A/CN.4/672. UN Secretary-General (1998) Analytical Report of the Secretary-General on Minimum Humanitarian Standards. UN Doc E/CN.4/1998/87. UN Secretary-General (2011) Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka, 31 March 2011. UN Security Council (1993) Report of the UN Commission on Truth in El Salvador. UN Doc S/ 25500. UN Security Council (1998) Resolution 1214. S/RES/1214 (1998). UN Security Council (2000a) Presidential Statement 2000/12. S/PRST/2000/12. UN Security Council (2000b) Presidential Statement 2000/12, 7 April 2000. UN Security Council (2000c) Resolution 1333. S/RES/1333 (2000). UN Security Council (2001) Resolution 1376. S/RES/1376 (2001). UN Security Council (2002a) Presidential Statement 2002/19. S/PRST/19. UN Security Council (2002b) Presidential Statement 2002/22. S/PRST/22. UN Security Council (2002c) Presidential Statement 2002/27. S/PRST/27. UN Security Council (2002d) Resolution 1417. S/RES/1417 (2002). UN Security Council (2004) Presidential Statement 2004/48. S/PRST/2004/48. UN Security Council (2005) Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General. UN Doc S/2005/60. UN Security Council (2006) Resolution 1721. S/RES/1721 (2006). UN Security Council (2007) Report of the Panel of Experts on the Sudan. UN Doc S/2007/584. UN Security Council (2010) Resolution 1964. S/RES/1964 (2010). UN Security Council (2011) Resolution 1991. S/RES/1991 (2011). UN Security Council (2012) Resolution 2071. S/RES/2071 (2012). UN Security Council (2014a) Final Report of the International Commission of Inquiry on the Central African Republic. UN Doc S/2014/928. UN Security Council (2014b) Resolution 2140. S/RES/2140 (2014). UN Security Council (2014c) Resolution 2165. S/RES/2165 (2014). UN Security Council (2015a) Resolution 2198. S/RES/2198 (2015). UN Security Council (2015b) Resolution 2233. S/RES/2233 (2015). UN Security Council (2016) Final Report of the Panel of Experts on Yemen. UN Doc S/2016/73. van den Herik L (2017) Research Handbook on UN Sanctions and International Law. Edward Elgar Publishing, Cheltenham/Northampton. Zegveld L (2002) The Accountability of Armed Opposition Groups under International Law. Cambridge University Press, Cambridge.

Jean-Marie Henckaerts, LL.M., S.J.D., is a Legal Adviser in the Legal Division of the International Committee of the Red Cross (ICRC). He was head of the ICRC’s project on customary IHL (2000–2010) and currently heads the ICRC’s project to update the commentaries on the 1949 Geneva Conventions and their Additional Protocols of 1977. The views in this chapter are those of the authors alone and do not necessarily reflect those of the ICRC.

8 Human Rights Obligations of Non-State Armed Groups

227

Cornelius Wiesener, LL.M., Ph.D., is a postdoctoral research fellow at the Centre of Excellence for International Courts (iCourts), University of Copenhagen, Faculty of Law, as well as a former associate at the ICRC Legal Division. The views in this chapter are those of the authors alone and do not necessarily reflect those of the ICRC.

Chapter 9

Post-Conflict Justice: Extending International Criminal Responsibility to Non-State Entities Ilya Nuzov

Contents 9.1 Introduction........................................................................................................................ 9.2 International Criminal Responsibility of NSEs: The Emergence of a General Principle of International Law? ........................................................................................................ 9.2.1 ‘General Principles of Law Recognized by Civilized Nations’ ............................ 9.2.2 Domestic Legislation and Practice as Expressions of the General Principle........ 9.2.3 International Positive Law and Decisions of International Tribunals ................... 9.2.4 UN Security Council Resolutions and Soft Law Instruments............................... 9.3 Organized Collective Entities Can (and Do) Commit Crimes ......................................... 9.4 International Criminal Responsibility of Organized Collective Entities Furthers Transitional Justice Objectives.......................................................................................... 9.4.1 Collective Responsibility and the Expressivist Potential of International Criminal Law ......................................................................................................................... 9.4.2 Prosecuting Collective Entities: Penetrating the Cloak of Collective Innocence ................................................................................................................ 9.4.3 The Disarticulating Potential of System Criminality............................................. 9.4.4 Model of Attribution: The French Model Plus Articles on Responsibility of International Organizations ................................................................................ 9.5 Conclusion ......................................................................................................................... References ..................................................................................................................................

230 233 235 237 240 245 246 248 249 251 253 255 256 258

Abstract With the proliferation of non-international armed conflicts, transitional justice has gained increased relevance as a range of judicial mechanisms aimed at punishing the wrongdoers while also aiming to reconcile nations torn by civil wars. In the aftermath of hostilities between States and non-state armed groups or between two or more non-state actors (NSAs), international law obliges the former to prosecute participants in hostilities who have committed war crimes, crimes I. Nuzov (&) International Federation for Human Rights, Paris, France e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 E. Heffes et al. (eds.), International Humanitarian Law and Non-State Actors, https://doi.org/10.1007/978-94-6265-339-9_9

229

230

I. Nuzov

against humanity, and genocide. As far as conventional wisdom goes, criminal responsibility is only attendant to individual perpetrators, but a recent pronouncement by the Special Tribunal of Lebanon (STL), along with developments in national laws targeting entities, other than States, might be changing this paradigm. Building on arguments proffered in other chapters that NSAs have obligations under international law, this chapter argues that in addition to trying individual perpetrators, international criminal jurisdiction should also extend to non-state armed groups, political parties and other collectives that have orchestrated, directed or executed atrocities through their agents. The chapter first analyses, along the lines of the STL, whether liability of collective entities has become a general principle of international law. It then argues that operationalizing international criminal responsibility of NSAs might serve several important transitional justice objectives. First, through the expressivist function of criminal prosecutions, trials of entities could communicate an important symbolic message to the society that crimes in the name of political goals or religious tenets will not be tolerated. Secondly, the attachment of opprobrium through declaratory judgments might help to address moral and political guilt of individuals who joined collectives exhibiting violent tendencies, preventing their resurgence. Thirdly, following the Nuremberg model, the imposition of individual administrative sanction in the form of lustration might ensure a greater reach of criminal justice and help disarticulate nefarious networks. As a consequence, extending prosecutions beyond individuals might offer more justice and recognition to victims of atrocities in post-conflict contexts.







Keywords Non-State Entities International Criminal Responsibility Transitional Justice General Principles of International Law System Criminality




9.1




Introduction

Of all non–state actors, only individuals bear the brunt of international criminal responsibility for serious violations of international humanitarian law (IHL). Since the International Military Tribunals (IMTs) at Nuremberg and Tokyo, and through the advent of ad hoc and hybrid international criminal courts and the International Criminal Court (ICC) towards the end of the 20th century, the prosecution and punishment of individuals has emerged as the sole form of penal sanction for war crimes and other violations of international criminal law (ICL). Whether an individual is a member of a State’s armed forces or a private military company (PMC), a fighter in a non-state armed group (NSAG) or a corporate executive involved in the war effort, only a natural person could be tried for international crimes under the jurisdiction of a hybrid or international criminal court. War crimes, genocide and crimes against humanity are crimes of collectives however, almost never committed without extensive support from a vast network of

9 Post-Conflict Justice: Extending International Criminal …

231

individuals comprising a NSAG, a political party, a corporation or another collective entity.1 Bound together by common objectives, policies and incentives, organizations are able to usher in a climate of obedience and impunity where conduct that violates fundamental human rights becomes the prevailing norm.2 Profiteering corporations implement policies that condone the pillaging of natural resources during conflicts where their financial interests are at stake.3 Often closing their eyes on abuses, governments increasingly outsource military operations to PMCs that have become particularly notorious for committing war crimes in places like Afghanistan and Iraq.4 Motivated by an extremist religious ideology, NSAGs such as the Islamic State of Iraq and Syria (ISIS) have been accused of committing genocide against the Yazidis and numerous other horrific crimes.5 Despite having the capacity to commit violations of ICL, these collective entities, as such, continue evading the reach of international criminal justice.6 Along with States, which already share some form of responsibility7 for the commission of international crimes, collective entities are the most likely participants in violations of IHL or human rights. Yet, they face no direct judicial scrutiny of or responsibility for crimes at the international level. This chapter addresses the accountability gap in the current enforcement scheme of ICL, weighing in on the debate surrounding the expansion of international criminal responsibility to NSAGs, corporations, political parties, PMCs and other non-State organized collective entities, hereinafter referred to cumulatively as non-State entities (‘NSEs’).8 1

Drumbl 2010, pp 374–5. Muñoz-Rojas and Frésard 2004, p 193 (‘Combatants are subject to group conformity phenomena such as depersonalization, loss of independence and a high degree of conformity. This is a situation that favours the dilution of the individual responsibility of the combatant within the collective responsibility of his combat unit.’) 3 For example, a 2013 complaint by the Attorney General of Switzerland accused Argor Heraeus SA of war crimes and aggravated money laundering for allegedly refining nearly three tons of gold pillaged by rebels in the north of the Democratic Republic of the Congo (DRC) between 2004 and 2005. After an investigation lasting nearly 18 months, the Office of the Attorney General ordered the case to be closed, finding that there was no evidence that the company knew it had been refining gold of illegal origins. The Attorney General did find however that gold had been pillaged from the DRC, and that the company had breached its anti-money laundering obligations. Stewart 2014, p 125. 4 See e.g. Dickinson 2005, p 153. 5 UN Human Rights Council 2016. 6 Clapham 2008, p 926. 7 Responsibility here refers to the legal consequences that arise from internationally wrongful acts, as embodied in the International Law Commission’s (ILC) Draft Articles on State Responsibility (DASR). Notably, in 1976 the ILC contemplated the adoption of Article 19 of the DASR, which would have provided for criminal responsibility for States. It was, however, ultimately rejected. See generally, Weiler et al. 1989. 8 For the purposes of this work the term ‘NSEs’ will be used interchangeably with ‘collective entities’ or ‘organized collective entities’, understood as being equivalent. These terms are preferred to the terms ‘legal’ or ‘juridical persons’ because this work addresses both organizations legally registered under the laws of a state and illegally formed entities. 2

232

I. Nuzov

The 20th Century has seen an exponential growth in the influence and reach of corporations and various other non-State organizations in every sphere of domestic life and international relations. With the proliferation of non-international armed conflicts (NIACs), the number and variety of organized entities involved in modern-day warfare has also substantially risen.9 Unsurprisingly, there is an increased recognition under both national and international laws that certain NSEs have IHL and human rights obligations, and that some could even face administrative, civil and criminal sanctions for breaching them.10 In 2014, an Appeals Panel of the Special Tribunal of Lebanon (STL) held that corporate criminal liability is on the verge of attaining the status of a ‘general principle of international law’.11 Two years later, the STL became the first international tribunal in history to find a corporation guilty of a crime, imposing a fine.12 The obligations of NSEs can also be expressed in terms of prohibitions under ICL.13 But the implementation regime of ICL ultimately fails to hold accountable the full array of people who share some responsibility for facilitating wide–scale abuses. Nor does it target States or NSEs, as such, which often propagate discriminatory policies and incite violence against other groups that result in the commission of atrocities by the entities’ agents.14 The prosecution of just a few individuals who execute orders on behalf of the collective entity could hardly deliver justice to victims or restore trust between warring communities. The selectivity problem of ICL makes its individual reach even less effective in societies addressing legacies of mass violence during periods of political change. When nations grapple with the aftermath of large–scale human rights abuses by implementing any transitional justice mechanism, such as criminal trials,15 traditional individually-centered penological goals of criminal justice must be qualified

9

ICRC 2016, para 352. See generally, Clapham 2006. See also Clapham 2008, above n. 6. One recent case – against Trafigura, a multinational corporation domiciled in the Netherlands – addressed the dumping of toxic waste off the coast of the Ivory Coast leading to the death of an estimated twelve people and the poisoning of thousands more, precipitating civil and criminal actions in various jurisdictions, including the Ivory Coast, the Netherlands, and the United Kingdom. See BBC 2010 Trafigura Found Guilty of Exporting Toxic Waste, BBC News, 23 July 2010. http://www.bbc.co.uk/news/ world-africa-10735255. Accessed 5 August 2018. 11 STL, New TV S.A.L. and Karma Mohamed Tahsin Al Khayat, Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings, 2 October 2014, STL-14-05/ PT/AP/AR 126.1 (STL Jurisdiction Appeal Decision), para 67. 12 Albeit a conviction for a contempt offence. STL, Akhbar Beirut S.A.L. Ibrahim Mohamed Ali Al Amin, Judgment, 15 July 2016, STL-14-06 (STL Judgment). 13 Sassòli n.d., Section IX, part 8, stating that ‘As for punishing violations, international criminal law is as applicable to insurgents as to government armed forces. Insurgent groups are responsible for violations committed by their members. Their responsibility to the international community has already been demonstrated by sanctions imposed on them by the Security Council’. 14 Drumbl 2007, p 37. 15 Individual criminal prosecution for international crimes is one of the cornerstones of the transitional justice framework. See e.g. International Center for Transitional Justice n.d. 10

9 Post-Conflict Justice: Extending International Criminal …

233

by the need to address broader, systemic causes of mass violence and to reestablish trust and the rule of law. This is because war crimes, crimes against humanity and genocide are ‘system crimes’, committed in situations where collective entities order, encourage or permit individuals to commit international crimes on their behalf.16 If the goals of transitional justice are the termination of ‘system crimes’ and reconciliation of various social groups, individual penal responsibility is also unlikely to achieve these aims.17 This chapter puts forth two categories of arguments in favour of holding NSEs responsible for international crimes: normative and penological. In part one, this chapter looks for the latest empirical evidence that there is an emerging general principle of international law that NSEs can commit international crimes, as suggested by the STL Appeals Panel, and can therefore be subject to criminal prosecutions for them in an international or domestic court or tribunal. Part two argues that the dynamism of norm development, both in the domestic and international orders, should be accompanied by a parallel evolution in the sanctions regime of ICL. In the aftermath of NIACs or international armed conflicts (IACs), the goals of transitional justice could be furthered more effectively if trials expanded beyond the individual-based model of criminal responsibility to encompass the criminal responsibility of NSEs. Building on the work of ‘expressivists’ like Mark Drumbl and Mark Osiel, this section argues that putting NSEs on trial could enhance the law’s ability to shape collective memory of the past and rebuild national identity, which are crucial to social reconstruction and the prevention of the reoccurrence of abuses. Raising the question of collective guilt, it suggests that a share of the responsibility should be allocated to those who joined the criminal collective, without criminalizing membership as such. It also proposes a sui generis collective sanctions regime where membership is tied to lustrations, which could help dismantle criminal groups and institutions. In conclusion, the chapter addresses some of the common critiques of views favouring the expansion of international criminal responsibility beyond individuals.

9.2

International Criminal Responsibility of NSEs: The Emergence of a General Principle of International Law?

The 2014 STL Appeals Panel’s Decision led the way to the first conviction of a corporation by an international court two years later in a related STL case.18 The 2014 Decision reversed an earlier ruling of the Contempt Judge, who dismissed the 16

Nollkaemper 2010, p 316. Nollkaemper 2009, p 4. 18 There are two separate but related matters that concern the Appeal Panel’s decision. The case against New TV S.A.L., subject of the STL Jurisdiction Appeal Decision, was ultimately dismissed. 17

234

I. Nuzov

indictment against a corporate entity on the basis that the Tribunal lacked jurisdiction to hold contempt proceedings against ‘legal persons’ (the ‘Jurisdiction Appeal Decision’). By a vote of two judges to one, the Appeals Panel held that the Tribunal’s contempt jurisdiction under Rule 60 bis was not limited to natural persons.19 The Court reached its decision by following the interpretative guidance contained in Rule 3(A) of the STL Rules of Procedure and Evidence, which instructed the Court to resolve any ambiguity in the Rules by interpreting them consistently with, in order of precedence: (i) the principles of interpretation laid down in customary international law, (ii) international standards on human rights (iii) the general principles of international criminal law and procedure and, as appropriate, (iv) the Lebanese Code of Criminal Procedure.20 Not finding any support for criminal liability of corporations in customary international law, the Court grounded its decision on criteria (ii)–(iv). The Appeals Panel first examined international standards on human rights, as well as national laws, concluding that the Contempt Judge had ‘erred in his reasoning as to the relevance of state practice towards criminalizing the acts and conducts of legal persons in domestic jurisdictions.’21 The Court then assessed ‘the general principles of international criminal law and procedure,’ where the Appeals Panel considered ‘instances in international law where legal entities and criminal law have intersected,’22 and found, in the relevant part, that ‘corporate liability for serious harms is a feature of most of the world’s legal systems and therefore qualifies as a general principle of law.’23 The Appeals Panel does not go as far as specifying whether criminal or civil liability of corporations has attained the level of a general principle of international law. However, its partial reliance on the general principle that corporations are liable for crimes, while holding that criminal contempt proceedings By a judgment of 18 September 2015, Judge Lettieri found New TV S.A.L. not guilty of contempt on the facts of the case. STL, Al Jadeed [Co.] S.A.L. / New T.V. S.A.L. (N.T.V.) and Karma Mohamed Tahsin Al Khayat, Judgment, Public Redacted Version of Judgment, Disposition F0176, 18 September 2015, 14-05/T/CJ. The acquittal of New TV S.A.L. was affirmed by the Appeals Panel (over the objections of Judge Nosworthy) on March 8, 2016. On 31 January 2014, in a different case, the initial Contempt Judge, Judge David Baragwanath, issued the ‘Redacted Version of Decision in Proceedings for Contempt with Orders In Lieu of an Indictment’, which included an Order in Lieu of an Indictment against another corporation, Akhbar Beirut S.A.L. (together with a natural person, Mr Al Amin). Even though the STL Jurisdiction Appeal Decision in the New TV S. A.L. matter had already reversed Judge Lettieri’s decision to dismiss the charges against a legal person (i.e. New TV S.A.L.), on November 6, 2014 Judge Lettieri declined to follow the Jurisdiction Appeal Decision in the Akhbar Beirut S.A.L. case and dismissed the charges against Akhbar Beirut S.A.L. for lack of jurisdiction. Predictably, that decision was again reversed by the Appeals Panel, reinstating the order in lieu of indictment by a decision dated 23 January 2015. At the conclusion of the trial, Judge Lettieri found Akhbar Beirut S.A.L. guilty of contempt by a judgment of 15 July 2016. 19 STL Jurisdiction Appeal Decision, above n. 11, para 74. 20 Ibid., para 26. 21 Ibid., para 43. 22 Ibid., para 62. 23 Ibid., para 67.

9 Post-Conflict Justice: Extending International Criminal …

235

could be instituted against them, seems to suggest that a causal relationship exists between the finding of the general principle of corporate liability and the potential of a legal person to incur criminal responsibility before the STL. Although the STL might have been premature in its qualification of corporate liability as a general principle of international law, the mere fact of such recognition thus sets an important precedent in furthering the reach of international criminal justice to collective entities. Along the lines suggested by the STL, the following section addresses the question whether a NSE can incur criminal responsibility for international crimes as a general principle of international law. It first briefly identifies the nature and sources of general principles of international law, and then provides empirical support, based on an overview of relevant domestic and international law and practice, for the position that the notion of criminal liability of NSEs has become so prevalent that it can be claimed as a general principle of international law.

9.2.1

‘General Principles of Law Recognized by Civilized Nations’

The traditional sources of international law are set forth in Article 38(1) of the Statute of the International Court of Justice (ICJ). It provides that in deciding disputes in accordance with international law, in addition to customary international law and treaties, the Court is to consider ‘general principles of law recognized by civilized nations.’24 The notion of ‘general principles of law’ has been interpreted differently. The prevailing view is that general principles are, first, expressions of national legal systems, and, second, expressions of other ‘unperfected sources of international law enumerated in … conventions, customs, writings of scholars,’ as well as decisions of the ICJ and other international tribunals.25 These expressions, along with manifestations of international consensus as set out in United Nations (UN) General Assembly and Security Council Resolutions, may singularly, or cumulatively with others, be considered to be expressions of a given principle.26 In 1989, the late Cherif Bassiouni presciently observed that conventional and customary international law had not developed the framework, norms, or rules necessary to regulate international criminality, and that general principles ‘will become the most important and influential source of international [criminal] law’ in

24

Statute of the International Court of Justice, opened for signature 26 June 1945, 1 UNTS XVI, entered into force 24 October 1945. As a subsidiary means for the determination of rules of law, the ICJ might also consider judicial decisions and the teachings of the most highly qualified publicists of the various nations. Article 38(1)(d). 25 Bassiouni 1989–1990, p 768. 26 Ibid., pp 768–9.

236

I. Nuzov

the coming decades.27 Two of the attributes of general principles of international law are particularly relevant for the purposes of the present discussion. First, they are a means for developing new norms of conventional and customary international law.28 According to Clapham, their growth function recognizes ‘a dynamic element in international law, and of the creative function of the courts which administer it.’29 As detailed further below, there is ample evidence of such dynamism in the area of international criminal responsibility of entities.30 The ‘growth function’ of general principles of international law could help to fill a lacuna in the regime of post-conflict accountability for international crimes. If we regard international responsibility for atrocities on a spectrum from individual actors that carry them out on the one end to the largest collectives on the other, accountability for international crimes is allocated between the extremes. That is, if a member of a State’s armed forces is found guilty of genocide, he or she faces individual penal sanction and the State’s international responsibility for the crime of its agent is also triggered.31 State responsibility is also present if the perpetrator belongs to a NSAG exercising elements of governmental authority or acting under the ‘effective control’ of a State, or when he or she is a member of a state-sponsored militia.32 The responsibility of non-State collectives is therefore either fragmented to its constituent parts (i.e. natural persons), or gets ‘absorbed’ by the responsibility of States, provided that sufficient indicia of agency, such as a contract of employment in State structures or signed orders, are present to impose State responsibility for the natural person’s conduct.33 In practice, however, the conduct of NSEs is almost never attributed to States, which are increasingly and understandably reluctant to exercise open control over groups like ISIS or the People’s Republic of Donetsk or Lugansk.34 Consequently, and outside of the regime for the international responsibility of international organizations, which lacks a proper forum for enforcement, international law reveals an accountability gap when it

27

Ibid., p 769. Ibid., p 777. 29 Clapham 2012, p 65. 30 In June 2014, the UN Human Rights Council adopted the Resolution 26/9 that established an open-ended intergovernmental working group whose mandate is to elaborate an international treaty to regulate the activities of transnational corporations and other business enterprises and their impact within the auspices of human rights law. UN Human Rights Council 2014. A recent draft of the document, titled ‘Legally Binding Instrument to Regulate, In International Human Rights Law, The Activities of Transnational Corporations and other Business Enterprises’, has been made available on the Council’s website. UN Human Rights Council 2018. 31 UN International Law Commission 2001, Chapter IV.E, Article 4. 32 Bilkova 2015, pp 266–267. See also UN International Law Commission 2001. See also ICJ, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, 27 June 1986, IC Reports 1986, p 14, para 115. 33 David 2002, p 643. 34 The latter are pro-Russia armed groups that have been fighting Ukrainian armed forces in East Ukraine since March 2014. 28

9 Post-Conflict Justice: Extending International Criminal …

237

comes to actors that dominate today’s armed conflicts, namely NSEs.35 General principles of international law might be instrumental in helping to fill this lacuna should the sanctions regime follow the dynamism of the developing norm on criminality of organizations. Secondly, general principles serve as a supplemental source36 to conventional and customary international law, providing a norm or standard when a custom or treaty is inapplicable or nonexistent so as to avoid a non liquet situation.37 In the absence of an applicable customary law or treaty, an international court can still justifiably punish acts known by all concerned to be contrary to the laws of nations.38 This feature of general principles can be particularly useful in minimizing the possibility of violating the nullum crimen sine lege principle in the absence of other applicable positive or customary law norms.

9.2.2

Domestic Legislation and Practice as Expressions of the General Principle

Whether a fundamental principle of justice rises to the level of a ‘general principle’ of international law can best, though not exclusively, be determined by its existence in national laws.39 It is not required that a legal principle exists in the legal systems of all nations.40 Rather, a common denominator in national law of most legal systems may be sufficient.41 Starting with common law jurisdictions,42 States across different legal traditions have increasingly recognized collective entities as persons for the purposes of criminal law, rendering practically extinct the doctrine of societas delinquere non

35

Zegveld 2002, p 97. This is not to suggest that general principles are inferior in the legal hierarchy to customary or conventional international law norms. The ‘gap-filling’ attribute of general principles has rather emerged through practice. Indeed, for some international lawyers such as Hersch Lauterpacht, the general principles of law are one of the tools that the international judge is not only permitted, but obligated, ‘to use to fill in gaps in the fabric of the law as a matter of the law’s completeness.’ Lauterpacht 1958, p 196. 37 Bassiouni 1989–1990, p 778. 38 Ibid., fn 47. 39 Ibid., p 772. 40 See e.g. Rhyne 1971. 41 See e.g. ICTY, Prosecutor v. Kunarac et al, Trial Judgment, 22 February 2001, IT-96-23-T & IT-96-23/1-T, paras 439–460, identifying the relevant international law that would define rape by reference to general principles of law as reflected in the basic principles common to most legal systems. 42 The notion that corporations could be charged with crimes goes back a lot further in certain common law states, like the U.S. See e.g. New York Central & Hudson River Railroad Co, v. United States, 1909, 212 U.S. 481, 29 S.Ct 304, 53 L.Ed. 613. 36

238

I. Nuzov

potest (organizations cannot commit an offense).43 Indeed, by the end of the first decade of the 21st century, all national legal systems recognized some form of liability of one or another NSE.44 They have done so by allocating criminal responsibility of entities in their criminal codes, or designating quasi-criminal responsibility in terms of regulatory or administrative offences. A growing number of countries are turning to a new model of collective liability sui generis.45 While there is no evidence of complete uniformity with respect to the criminal responsibility of NSEs by the turn of the 20th Century,46 the last two decades evidence a growing acceptance of criminality of entities in domestic criminal law.47 In particular, the STL Appeals Panel identified at least forty states, including most states of the European Union, that provide for what it called ‘genuine corporate criminal liability,’ the criminal liability of an entity for a crime.48 With respect to legislation criminalizing the conduct of NSEs specifically for international crimes, James G. Stewart has identified three domestic models.49 First, a large number of States have adopted a comprehensive criminal code that first dedicates a specific provision in the code extending its applicability to juridical persons, before going on to prohibit international crimes in subsequent sections.50 Stewart cites the example of Australia, where the Commonwealth Criminal Code of 1995 first states that it ‘applies to bodies corporate in the same way as it applies to individuals,’ and then explicitly lists the international crimes prohibited by the Code. According to one recent study, half of the national legal systems in Europe,

43

Stewart 2014, pp 134–135. Kiobel v. Royal Dutch Petroleum Co., 2013, 133 S.Ct. 1659. Brief of Amici Curiae Center For Constitutional Rights, International Human Rights Organizations and International Law Experts In Support of Petitioners, No. 10-1491 (filed July 13, 2011). 45 Eser 2009, p 228. Notably, see also Thompson et al. 2009, noting that Argentina, Belgium, France, Japan, the Netherlands and Spain employ the mixed civil/criminal type action that allows a victim of a crime or his representative to seek tort damages against a juridical defendant in a criminal case. 46 Harvard Law Review 2001, p 2031. 47 For a survey of 16 such countries, see Ramasastry and Thompson 2006, examining corporate liability in Argentina, Australia, Belgium, Canada, France, Germany, India, Indonesia, Japan, Norway, the Netherlands, Spain, South Africa, Ukraine, the United Kingdom, and the United States. 48 STL Jurisdiction Appeal Decision, above n. 11, paras 52–55. 49 Stewart 2014, p 164. 50 Ibid. See also § 12.1(1), Commonwealth Criminal Code Act 1995; § 48(a), Norwegian General Civil Penal Code; Section 5, Belgian Criminal Code (‘[t]oute personne morale est penalement responsable des infractions qui sont intrinsequement liees a la realisation de son objet ou a la defense de ses interets, ou de celles dont les faits concrets demontrent qu’elles ont ete commises pour son compte.’); Likewise, Article 121 of the French Penal Code is translated into English as ‘Legal persons, with the exception of the State, are criminally liable for the offenses committed on their account by their organs or representatives.’ 44

9 Post-Conflict Justice: Extending International Criminal …

239

including Norway, France, and Belgium, allow corporations to be convicted of all crimes as proscribed by their respective criminal codes.51 Secondly, a range of States have established the criminal liability of entities within their criminal codes, but specify only a limited subset of criminal offenses that these entities can commit or identify these offences by incorporating other laws.52 Oftentimes, this subset includes economic crimes committed by NSEs while engaging in international operations, such as corruption crimes,53 and international crimes. Nine European States have designated a circumscribed class of criminal offenses that corporate actors can commit, three of which explicitly extended corporate criminal liability to ‘crimes within the jurisdiction of the International Criminal Court.’54 The third category is comprised of States that have promulgated separate legislation mandating that the term ‘person’ or its equivalent be read as including both natural and legal persons in all other penal legislation. In Canada, for instance, a statute adopted in 2000 implementing key provisions of the ICC’s Rome Statute, the Canadian Crimes Against Humanity and War Crimes Act, vests jurisdiction in Canadian federal courts to try individuals for war crimes listed in this treaty. Coupled with another regulation defining ‘persons’ as including juridical entities, Canadian law effectively allows for the direct criminal liability of a variety of NSEs for violations of ICL.55 These models for extending domestic criminal liability to entities have mostly been applied against corporate entities.56 But a growing acquiescence among States 51

De Bondt et al. 2012, pp 80–84. Stewart 2014, p 165. See e.g. the U.S. Foreign Corrupt Practices Act (FCPA). Two provisions of this Act made it a crime for any American business to use the mails or interstate commerce to offer or pay money or anything of value to a foreign official or to a foreign political party, party official, or candidate for foreign political office in order to influence the person in his decision making or to use his influence to assist the firm in obtaining or retaining business. See 15 U.S.C. §§ 78dd-1 and 78dd-2. 53 The practice is especially rich in the United States. Numerous corporations have faced criminal enforcement actions under the FCPA. See e.g. Securities and Exchange Commission v. ABB Ltd, Case No. 1:04CV1141 [RBW] (U.S.D.C., D.D.C.); Securities and Exchange Commission v. Siemens Aktiengesellschaft, Civil Action No. 08 CV 02167 (D.D.C.); Securities and Exchange Commission v. Halliburton Company and KBR, Inc., 4:09-CV-399 (S.D. Tex., Houston). 54 De Bondt et al. 2012, pp 80–84. 55 Kelly 2012, p 365. Similarly, in the United States, the War Crimes Act stipulates that ‘whoever’ commits a war crime is subject to criminal punishment including fine, imprisonment and death. The Dictionary Act of 2000 states that ‘[i]n determining the meaning of any Act of Congress … the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.’ See 18 U.S.C. § 2441(a) (2006), and Dictionary Act, 1 U.S.C. § 1 (2000). 56 In a significant recent development, on 28 June 2018 the French cement corporation Lafarge was indicted by French investigative judges for complicity in crimes against humanity and financing of a terrorist enterprise (ISIS) in connection with the armed conflict in Syria. It named as defendants the group Lafarge itself, its Syrian subsidiary, two senior executives at the time and its current CEO. See ECCHR 2018. In the aftermath of over 40 years of intermittent non-international armed conflicts in Colombia, the government signed a peace agreement with the Revolutionary Armed Forces of Colombia in September 2016. During the ensuing transitional justice process, the Colombian government has 52

240

I. Nuzov

signals that other NSEs, such as political parties, could also face penal sanction.57 While none of these cases has so far resulted in outright convictions of legal entities for international crimes,58 they tend to show that NSEs, at least those recognized as having a legal character under domestic law, are not immune to prosecution across national jurisdictions espousing divergent legal traditions.

9.2.3

International Positive Law and Decisions of International Tribunals

Numerous international and regional treaties concern criminal liability of NSEs.59 These generally fall into four different categories. The first and most rare types of treaties criminalize the conduct of NSEs directly. Only one of these provides for criminal sanctions for violations of the treaty’s substantive provisions outright. The June 2014 African Union protocol amending the statute of the African Court of Justice and Human Rights (known as the ‘Malabo Protocol’), once it enters into force, will endow that court with jurisdiction to the reconstituted African Court to prosecute corporations for international crimes, including war crimes.60 Several of the treaties criminalizing entities for violations of IHL envision no sanctioning regime beyond the possibility of a declaratory judgment. The most significant of these was Article 9 of the Charter of the International Military Tribunal (London 8 August 1945), attached to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, which provided that ‘at the trial of any individual member of any group or organization the Tribunal may declare (in connection with any act of which the individual may be convicted) charged several multinational corporations, including Del Monte, Dole Food Company and Chiquita, with crimes against humanity for voluntarily financing right-wing paramilitary groups in the northern banana-producing region of Uraba. Telesur TV 2017. 57 In April 2012, a Croatian county court began a trial against one of two major political parties in Croatia, the Croatian Democratic Union (HDZ), and former Prime Minister Ivo Sanader, charging them with political corruption. For more detail on this case and the debate surrounding criminal responsibility of political parties, see Maršavelski 2014, pp 502–3. On 11 March 2014, HDZ was convicted, fined around 650,000 euro and was ordered to pay 4 million more in reparations. See County Court of Zagreb, Croatia, Judgment, 11 March 2014, 13-US-8/12. 58 Much like the IMT in Nuremberg, a case decided in 1947 by the Supreme National Tribunal of Poland came the closest to such a conviction. In the Fischer and Leist judgment of 3 March 1947, the Polish Tribunal declared the entire occupation government of the General Governorate of Poland, in addition to Nazi structures already declared criminal by the IMT, a criminal organization. See Grzebyk 2014, p 617. 59 Treaties use different terms to address NSEs, the most common of which are ‘juridical persons’, ‘legal persons’, ‘legal entities,’ and ‘organizations.’ 60 See Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, as at 15 May 2014, STC/Legal/Min/7(I) Rev. 1, Article 46C, para 1 (providing that ‘[f]or the purpose of this Statute, the Court shall have jurisdiction over legal persons, with the exception of States’).

9 Post-Conflict Justice: Extending International Criminal …

241

that the group or organization of which the individual was a member was a criminal organization.’ The IMT indicted six organizations, of which three were held to be criminal based on their ‘participation’ in war crimes and crimes against humanity in connection with the Second World War. 61 Similarly, Article I(2) of the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid provides that ‘[t]he States Parties to the present Convention declare criminal those organizations, institutions and individuals committing the crime of apartheid.’62 However, in neither case does the declaration of criminality translate into actual criminal liability, i.e. no sanction for the entity follows the finding of its criminality. In Nuremberg, the determination of the criminality of a group provided a means to hold criminally liable natural persons for their membership in such criminalized groups.63 Treaties belonging to the second category require State parties to criminalize the conduct of NSEs. These are particularly prevalent with respect to financial crimes.64

61

Namely the Leadership Corps of the Nazi Party, the Gestapo and SD, and the SS. International Military Tribunal, The Accused Organizations, Judgement, 30 September and 1 October 1946 (IMT Judgment), pp 85–86, 91. 62 International Convention on the Suppression and Punishment of the Crime of Apartheid, opened for signature 30 November 1973, 1015 UNTS 243, entered into force 18 July 1976. 63 Charter of the International Military Tribunal – Annex to the Agreement by the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional Government of the French Republic and the Government of the Union of Soviet Socialist Republics for the prosecution and punishment of the major war criminals of the European Axis, signed 8 August 1945, 82 UNTS 279, entered into force 8 August 1945 (IMT Charter), Article 10. 64 See e.g. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, opened for signature from 23 March 1989 to 22 March 1990, 1673 UNTS 57, entered into force 5 May 1992, Article 2(14): ‘For the purposes of this Convention: … “Person” means any natural or legal person’, Article 4: ‘The Parties consider that illegal traffic in hazardous wastes or other wastes is criminal’; Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, opened for signature 17 December 1997, S. Treaty Doc. No. 105-43, entered into force 15 February 1999, Article 2: ‘Each Party shall take such measures as may be necessary, in accordance with its legal principles, to establish the liability of legal persons for the bribery of a foreign public official’, Article 3(3): ‘Each Party shall take such measures as may be necessary to provide that the bribe and the proceeds of the bribery of a foreign public official, or property the value of which corresponds to that of such proceeds, are subject to seizure and confiscation or that monetary sanctions of comparable effect are applicable’; Second Protocol to the European Convention on the Protection of the European Communities’ Financial Interests, Adopted 19 June 1997, No. C 221111, Article 3(1), Liability of legal persons: ‘Each Member State shall take the necessary measures to ensure that legal persons can be held liable for fraud, active corruption and money laundering committed for their benefit by any person, acting either individually or as part of an organ of the legal person, who has a leading position within the legal person …’, Article 4, Sanctions for legal persons: ‘Each Member State shall take the necessary measures to ensure that a legal person held liable pursuant to Article 3(1) is punishable by effective, proportionate and dissuasive sanctions, which shall include criminal or non-criminal fines’; United Nations Convention against Transnational Organized Crime, opened for signature 12 December 2000, 2225 UNTS 209, entered into force 29 September 2003, Article 10(2): ‘Subject to the legal principles of the State Party, the liability of legal persons may be criminal,

242

I. Nuzov

The International Convention for the Suppression of the Financing of Terrorism for instance, provides that (emphasis added): 1. Each State Party, in accordance with its domestic legal principles, shall take the necessary measures to enable a legal entity located in its territory or organized under its laws to be held liable when a person responsible for the management or control of that legal entity has, in that capacity, committed an offence set forth in Article 2. Such liability may be criminal, civil or administrative. 2. Such liability is incurred without prejudice to the criminal liability of individuals having committed the offences. 3. Each State Party shall ensure, in particular, that legal entities liable in accordance with paragraph 1 above are subject to effective, proportionate and dissuasive criminal, civil or administrative sanctions. Such sanctions may include monetary sanctions.65

A third category of treaties addresses the responsibility of NSEs for international or other crimes only implicitly. These leave the term ‘person’ subject to interpretation as the treaty does not specifically address entities. The Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention), for instance, does not distinguish between natural and legal persons, leading some scholars to conclude that it can apply to legal entities.66 Indeed, the ICJ’s 2007 judgment in the Bosnia Genocide Case strongly implied that States could be held liable for genocide, provided that the definitional prerequisite of Article II of the Genocide Convention is met.67 Commenting on the outcome of the Bosnia Genocide Case, Cassese remarked that if an abstract entity such as a State could be held responsible for genocide, then ‘the same should apply to corporations,’ adding that this would lend support for criminal liability of corporations for genocide based on the conduct of their agents.68

civil or administrative’; Council of Europe Convention on the Prevention of Terrorism, opened for signature 16 May 2005, CETS No. 196, entered into force 1 June 2007, Article 10(2): ‘Subject to the legal principles of the [State] Party, the liability of legal entities may be criminal, civil or administrative’. 65 Adopted by the General Assembly of the United Nations in resolution 54/109 of 9 December 1999. See also Article 18 of the Council of Europe Criminal Convention on Corruption of 1999, which requires each State Party to ‘adopt such legislative and other measures as may be necessary to ensure that legal persons can be held liable for the criminal offences of active bribery, trading in influence and money laundering established in accordance with this Convention’. For an overview and analysis of this and similar conventions at the European Union level, see Clapham 2000, pp 175–178. 66 See e.g. Kelly 2012, pp 339–367; Bassiouni 1999, pp 24–27. 67 ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 26 February 2007, I.C. J. Reports 2007, p 43, paras 278–297 (concurring with the ICTY that genocide was committed in Srebrenica) and paras 413–15 (concluding that acts could not be attributed to Serbia and Montenegro). 68 See Cassese 2008, p 969.

9 Post-Conflict Justice: Extending International Criminal …

243

Lastly, there are those treaties that impose obligations on NSEs not to violate IHL or human rights, but without going as far as to criminalizing violations by either a declaration of criminality or penal sanction. A plain text reading of Common Article 3 of the Geneva Conventions of 1949, which applies to ‘each Party’ to an armed conflict not of an international character, falls into this category. The ICRC’s 2016 Commentary to the Geneva Conventions confirms that ‘common Article 3 is binding on non-State armed groups, both as treaty and customary law.’69 Some efforts to codify or develop international law to address the responsibility of entities, particularly corporations and international organizations, should also serve as evidence of an emerging consensus that entities could commit international crimes.70 The 1998 Rome Conference, that led to the establishment of the ICC, considered a provision that would have included ‘legal persons’ within the jurisdiction of the Court.71 Despite negotiations, delegations were unable to come to an agreement on the inclusion of NSEs in the convention’s text due mainly to time constraints.72 The International Law Commission (ILC) has opted not to include a provision criminalizing the conduct of either States or international organizations (IOs) in the respective draft articles on responsibility (DASR).73 In its work on State responsibility however, the ILC has recognized the possibility that a rebel group ‘may itself be held responsible for its own conduct under international law, for example for a breach of international humanitarian law committed by its forces,’ stopping short of exploring the topic further since its mandate was limited to responsibility of States.74 Since 2014, the ILC has been seized with drafting a convention on crimes against humanity. In its 69th session in 2017, the ILC adopted the entire set of draft articles on crimes against humanity on its first reading.75 Draft Article 8 of the convention provides that: [s]ubject to the provisions of its national law, each State shall take measures, where appropriate, to establish the liability of legal persons for the offences referred to in this draft article. Subject to the legal principles of the State, such liability of legal persons may be criminal, civil or administrative.

In the commentaries to the draft, the ILC explains that it:

69

ICRC 2016, para 505. Kleffner 2009, p 240. 71 UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court 1998b. 72 On the process leading to the ultimate rejection of the proposal, see Clapham 2000, pp 145– 153, and 157–158. 73 In 1976, the ILC included Article 19 in its initial Draft Articles on State Responsibility, which would have provided for criminal responsibility for States. The provision was ultimately rejected however. See generally, Weiler et al. 1989. 74 UN International Law Commission 2001, Commentary to Article 10, para 16. 75 UN International Law Commission 2017. 70

244

I. Nuzov

decided to include a provision on liability of legal persons for crimes against humanity, given the potential involvement of legal persons in acts committed as part of a widespread or systematic attack directed against a civilian population. In doing so, it has focused on language that has been widely accepted by States in the context of other crimes and that contains considerable flexibility for States in the implementation of their obligation.76

It took seventy years after World War II for another international tribunal (the STL) to embrace the criminal responsibility of organizations. The IMT remains the first and only international tribunal to have recognized the criminal character of non-natural persons for their ‘participation’ in international crimes, declaring at the same time (and somewhat paradoxically) that ‘[c]rimes against international law are committed by men, not by abstract entities.’77 Short of embracing collective criminality for substantive crimes, the STL and other international tribunals have decidedly gravitated towards some form of recognition of collective responsibility, rejecting the Nuremberg dictum. On July 15, 2016, the STL became the first international tribunal to find a corporation guilty of contempt.78 The court found that Akhbar Beirut S.A.L. knowingly and willfully interfered with the administration of justice by publishing information on purported confidential witnesses in the newspaper owned by the legal entity, thereby undermining public confidence in the Tribunal’s work.79 The STL subsequently sentenced the corporation to a payment of €6,000 in fines.80 The jurisprudence of other ad hoc tribunals and the ICC on Joint Criminal Enterprise (JCE), co-perpetrator liability, conspiracy, and accomplice liability appears to strike a compromise between the need to address what has been described in Tadić as ‘manifestations of collective criminality,’ on the one hand, and the desire of States to preserve the liberal legalist model of justice targeting individuals on the other.81 International tribunals often employ and develop new theories of penal prosecutions in post-conflict trials to reach and dismantle collectives, albeit up to now by imposing sanctions only on individuals. These

76

Ibid., pp 60, 71. IMT, France et al. v. Goering et al, 1 October 1946, 22 IMT 411, para 466. 78 Compelled to follow the Appeal Panel’s finding that legal persons fell within the STL’s inherent contempt jurisdiction, Judge Lettieri proceeded to apply the Lebanese criminal code, which required the fulfillment of three conditions for attributing the acts of natural persons to legal persons: (i) the criminal liability of a specific natural person; (ii) this person’s power to act in the name of the corporation; and (iii) that the individual acted on behalf of or using the means of the corporation. Applying these criteria, Judge Lettieri convicted Akhbar Beirut S.A.L. and acquitted another legal person (New T.V. S.A.L.) in a separate but related case. STL, STL Judgement, above n. 12, para 5. 79 Ibid. 80 STL 2018 Press Release. Contempt case STL-14-06 against Mr Ibrahim Al Amin closed; enforcement of sentence against Akhbar Beirut S.A.L outstanding, 17 October 2018. https://www. stl-tsl.org/en/media/press-releases/6294-contempt-case-stl-14-06-against-mr-ibrahim-al-aminclosed-enforcement-of-sentence-against-akhbar-beirut-s-a-l-outstanding. Accessed 14 April 2019. 81 ICTY, Prosecutor v. Tadić, Appeals Chamber Judgment, 15 July 1999, IT-94-1 (Prosecutor v. Tadić), para 288. 77

9 Post-Conflict Justice: Extending International Criminal …

245

developments in ICL focused on collectives, including the direct indictment of a corporation, along with the increase in positive law targeting entities, could be evidence of a the normative broadening of forms and scope of collective responsibility for mass crimes.

9.2.4

UN Security Council Resolutions and Soft Law Instruments

Both the UN Security Council and the UN General Assembly have repeatedly denounced serious violations of IHL committed by organized NSAGs, usually by general references to ‘parties to a conflict.’82 UN Security Council Resolutions rarely address non-State actors directly, but they have imposed obligations upon States to sanction such entities. In a series of resolutions adopted under Chapter VII of the UN Charter, the UN Security Council has imposed sanctions on groups as diverse as the non-state State parties to the conflict in Sierra Leone,83 Al Qaida and the Taliban,84 foreign and Congolese armed groups and militias operating in the territory of the Democratic Republic of the Congo,85 and ISIS and Al-Nusra Front (ANF).86 Only some of these make express references to international crimes as one of the underlying reasons for imposing assets freezes, weapons embargoes and other measures. One of the most noteworthy was the UN Security Council Resolution 2170, which specifically addressed non-State actors and appeared to admit the possibility of non-State actors’ violating IHL directly. Acting under Chapter VII, the UN Security Council deplored and condemned the terrorist acts of ISIS, ‘and its continued gross, systematic and widespread abuses of human rights and violations of international humanitarian law,’ and demanded that ISIS, ‘ANF, See e.g. UN Security Council 2008b on the situation in Somalia, para 16 addressing ‘all parties in Somalia’; UN Security Council 2007 on the situation in Chad, the Central African Republic and the sub region, Preamble (‘activities of armed groups and other attacks in eastern Chad, the north-eastern Central African Republic and western Sudan which threaten the security of the civilian population, the conduct of humanitarian operations in those areas and the stability of those countries, and which result in serious violations of human rights and international humanitarian law’). 83 These include, most notably, UN Security Council 1997; and UN Security Council 1998. 84 These include, among others, UN Security Council 1999 of 15 October 1999 and subsequent resolutions: UN Security Council 2000; UN Security Council 2001; UN Security Council 2002; UN Security Council 2003a; UN Security Council 2004a; UN Security Council 2005b; UN Security Council 2006b; UN Security Council 2006c; UN Security Council 2008c; UN Security Council 2009; UN Security Council 2011; UN Security Council 2012; UN Security Council 2014a; and UN Security Council 2015a. 85 See UN Security Council 2003b, and subsequent resolutions: UN Security Council 2004b; UN Security Council 2005a; UN Security Council 2005c; UN Security Council 2006a; and UN Security Council 2008a. 86 These include, most notably, UN Security Council 2014b; and UN Security Council 2015b. 82

246

I. Nuzov

and all other individuals, groups, undertakings and entities associated with Al-Qaida cease all violence and terrorist acts, and disarm and disband with immediate effect’.87 Important strides in corporate accountability have been championed by the UN Human Rights Council (HRC), particularly through the adoption and promotion of the ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’.88 In a separate 15 June 2016 report, the UN HRC was unequivocal in recognizing the ability of NSEs to commit international crimes, finding that ‘ISIS has committed the crime of genocide as well as multiple crimes against humanity and war crimes against the Yazidis … through killings, sexual slavery …, torture and inhuman and degrading treatment and forcible transfer causing serious bodily and mental harm’, among other atrocities.89 Another soft law instrument of growing significance is the UN General Assembly’s ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law’. These principles state that ‘[i]n cases where a person, a legal person, or other entity is found liable for reparation to a victim, such party should provide reparation to the victim’ and that ‘States shall, with respect to claims by victims, enforce domestic judgements for reparation against individuals or entities liable for the harm suffered and endeavor to enforce valid foreign legal judgments for reparation in accordance with domestic law and international legal obligations’ (emphasis added).90

9.3

Organized Collective Entities Can (and Do) Commit Crimes

Although a more in-depth study of domestic criminal justice systems is in order, the preliminary overview of municipal law and relevant international instruments and practice reveals that the recognition of criminal responsibility of NSEs for wrongful conduct has emerged as a predominant feature among the world’s legal systems. This prevailing conception of law and justice then, notwithstanding the differences in the form and substance of provisions targeting NSEs across jurisdictions, is 87

UN Security Council 2014b, paras 1 and 4. Office of the High Commissioner for Human Rights 2011. See also UN Commission on Human Rights 2003, para 3: ‘Transnational corporations and other business enterprises shall not engage in nor benefit from war crimes, crimes against humanity, genocide, torture, forced disappearance, forced or compulsory labour, hostage-taking, extrajudicial, summary or arbitrary executions, other violations of humanitarian law, in particular human rights and humanitarian law’. For an extensive overview of this and other soft law instruments, see STL Jurisdiction Appeal Decision, above n. 11, paras 46–47. 89 UN Human Rights Council 2016. 90 UN General Assembly 2006, paras 15, 17. 88

9 Post-Conflict Justice: Extending International Criminal …

247

representative of the notion that a common denominator exists between all legal systems.91 There is a general principle that NSEs can commit crimes, for which they incur some form of responsibility, and for the commission of which they should be sanctioned. Indeed, a number of legal scholars, as well as the ICRC, also support the view that holding NSEs directly responsible for violations of IHL should be possible.92 For instance, in its 2005 Study on Customary IHL, the ICRC endorsed the view that NSAGs ‘incur responsibility for acts committed by persons forming part of such groups,’ admitting however that ‘the consequences of such responsibility are not clear.’93 If general principles are sources of norms,94 they might also be said to create international obligations for NSEs not to commit crimes, as well as to confer on them legal personality under international law.95 Whether or not NSEs are subjects of international law and must therefore be allowed to participate in the international legal processes, such as criminal trials, has become a largely academic debate. Non-state entities are de facto ‘participants’, with rights and responsibilities under international law.96 International organizations,97multinational corporations, private military companies,98 political parties,99 non-governmental organizations and

91

Bassiouni 1989–1990, pp 772–773. See Kleffner 2009; and Sassoli, who claims that ‘violations of international humanitarian law by such parties [AOGs] entail their international legal responsibility’. Sassoli 2002, p 411; Zegveld agrees that ‘the principle that armed opposition groups may be held accountable for wrongful acts committed by them has been recognized.’ Zegveld 2002, p 133. See also Bellal 2017, p 240. 93 International Committee of the Red Cross n.d. Customary IHL Database, Rule 149. See also ICRC 2016, paras 890–892, envisioning the responsibility of armed groups for violations of CA 3, but stating that ‘International law is unclear as to the responsibility of a non-State armed group, as an entity in itself, for acts committed by members of the group.’ 94 Both commentaries on the responsibility of States and international organizations for internationally wrongful acts explain that an international obligation ‘may be established by a customary rule of international law, by a treaty or by a general principle applicable within the international legal order’. See e.g. UN International Law Commission 2011, p 31. 95 The ICJ has already held that ‘International organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties.’ ICJ, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, 20 December 1980, I.C.J. Reports 1980, p 73, para 37. 96 Reisman 2012, p 233. 97 This includes sui generis entities such as the ICRC. As famously stated by the ICJ in its advisory opinion in Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 11 April 1949, I.C.J Reports 1949, pp 174, 178: ‘The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community.’ 98 See e.g. Kelly 2012, p 341, remarking that corporations, particularly private military companies, play a particularly active role in the commission of war crimes and crimes against humanity. 99 See Wood 2013, pp 1–21. 92

248

I. Nuzov

NSAGs all possess a limited international legal personality, are capable of committing international crimes, and could be tried for these crimes under international law.100

9.4

International Criminal Responsibility of Organized Collective Entities Furthers Transitional Justice Objectives

The evolution of international criminal justice is intrinsically tied to periods of transitions away from wartime violence or State-sponsored repression. It is when armed conflicts end, and totalitarian regimes fall, that new political elites can respond to domestic and international calls for justice by prosecuting the offenders, often with international involvement. Criminal trials are one of a range of measures that States and international organizations employ to provide redress and accountability for past atrocities during times of political change; the aggregate of these measures is known as transitional justice.101 Other mechanisms of transitional justice include truth commissions, reparations, and institutional reforms, such as lustrations.102 Most ad hoc international and hybrid tribunals were established to prosecute and punish perpetrators of atrocities in transitional contexts.103 The world’s only permanent International Criminal Court has thus far only prosecuted individuals from jurisdictions where other transitional justice measures, most commonly truth commissions, have been implemented.104 The aims of justice in fragile transitional societies differ significantly from those where peace and stability are the norm.105 They include, inter alia, fostering reconciliation and long-term peace, restoring trust in institutions, uncovering the truth and creating a historical record of abuses, as well as facilitating nation-building.106 These objectives reflect the nature of international crimes, which often involve widespread and systemic violence that destroys trust between communities.107 Yet ICL, as it stands today, addresses wide-scale atrocities as exclusively the crime 100

Clapham 2000, p 141. UN Secretary General 2004, para 8. 102 Lustration refers to measures restricting from public service members of a previous regime. 103 An obvious exception to this is the STL, which was established to investigate a single assassination (that of former Lebanese Prime Minister Mr Rafik Hariri on 14 February 2005) together with other associated assassinations and attempted assassinations. 104 This was the case in both the Democratic Republic of the Congo and the Central African Republic. 105 Lopez 2015, p 825. 106 Ibid. 107 See e.g. the Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3, entered into force 1 July 2002, Article 7, one of the elements of crimes against humanity is a showing of ‘a widespread or systematic attack.’ 101

9 Post-Conflict Justice: Extending International Criminal …

249

of individuals.108 Borrowing the rationalities of ordinary domestic justice,109 ICL places the emphasis of the penal process on individual culpability, and obscures a ‘basic truth’ about war crimes, crimes against humanity and genocide—that they are by their very nature committed by groups against members of other groups.110 As a consequence, ICL neglects the need for a critical reassessment of the context of atrocities, including the historical relations, grievances, and the distribution of wealth and power between key social groups, which allowed for catastrophic events to transpire.111 In these circumstances, traditional deterrent and retributive aims of criminal justice, which seek to curb individual recidivism, should yield to the wider societal objective of preventing the reoccurrence of group violence.112 Operating from the assumption that international justice is desirable in the absence of a bona fide domestic prosecution of international crimes, this section proposes three arguments for why the jurisdiction of the next ad hoc international criminal court or hybrid tribunal established in a transitional context should extend to NSEs.113 The first is that this theory of liability would better advance penological goals of justice, particularly its expressivist aims, in shaping the collective memory of war-torn nations and rebuilding their identities. It then posits that prosecuting NSEs could further justice through a greater distribution of collective guilt, both through the opprobrium of a criminal judgment and the prospect of administrative sanctions or lustrations. Thirdly, it argues that the contents of a criminal sanctions regime addressing NSEs could entail important practical consequences in the disarticulation of criminal networks, strengthening the rule of law and providing the basis for other transitional justice reforms.

9.4.1

Collective Responsibility and the Expressivist Potential of International Criminal Law

Trials of ‘system crimes’ should not only judge, but also explain cataclysmic events or periods in a nation’s history. For Drumbl and Osiel, expressivism transcends

108

Among others, the ICTY reiterated that the foundation of criminal responsibility in international law remains the principle of personal culpability. See Prosecutor v. Tadić, above n. 81, para 186. 109 Drumbl 2007, p 11. 110 Fletcher 2002, p 1499. 111 Drumbl 2010, pp 373–384. 112 Bellal 2017, p 240. 113 Anthony Lang has even argued for the creation of a new international criminal court for groups, which would include both non-state political groups (NGOs, terrorist organizations) and multinational corporations, which could adjudicate international political crimes. Lang 2008. For a similar debate surrounding the creation of a World Human Rights Court, which would hold States and ‘certain non-State actors accountable for violations of international human rights law,’ see Nowak and Kozma (2009).

250

I. Nuzov

retribution and deterrence in claiming as a central goal the crafting of historical narratives, their authentication as the truth, and their pedagogical dissemination to the public.114 Through their didactic role, trials and punishment express and affirm the value of law, strengthen social solidarity, and incubate a moral consensus among the public with respect to the repressive past.115 The historical narratives constructed during trials also contribute towards developing a collective memory – an enduring and shared memory of past events – that is essential to social reconstruction and prevention of another civil war or recurrence of mass abuses.116 Several disciplines that have studied the relationship between collective memory and justice recognize that legal proceedings play a role in strengthening a shared understanding of the past, which in turn facilitates reconciliation and societal healing.117 The sociologist Émile Durkheim believed that the law plays a central role in connecting individuals to society, because it evokes the collective conscience, or ‘the totality of beliefs and sentiments common to average citizens of the same society.’118 Writing on collective memory, Durkheim’s student Maurice Halbwachs stressed how law is linked with the ‘whole material and moral framework of the society of which we are part.’119 The focus on individualized culpability in ICL underexplores this societal dimension of ‘system crimes’. Drawing on their fieldwork in Bosnia, Fletcher and Weinstein identify a ‘communal engagement with mass violence’ that, in their estimation, ‘[individual] criminal trials leave unaddressed.’120 One way that the expressive potential of a criminal trial could be enhanced is by placing a greater focus in prosecutions of international crimes on collectives.121 Adding NSEs to the docket, along with the individual defendant, would place collectives at the center of judicial scrutiny, broadening the evidentiary reach of criminal proceedings. Facts gleaned from trials over entities could help penetrate deeper into the systemic causes of mass repressions, and to explain collective grievances, the political context, and key financial interests that drove the conflict. They might also tap into the ‘collective consciousness’ of a nation and trigger if not a recalibration of societal values, then at least dialogue and debate about the past. Authoritative legal records establishing facts surrounding the circumstances of atrocities relevant to the main organizational players might help to formulate a common and pervasive moral judgment over them. Reaching a consensus over a corrupt ideology that inspired mass violence could help to rebuild a shaken national identity around democratic values and the rule of law, and further reconciliation.

114

Drumbl 2007, p 173. Osiel 1997, pp 39–40. 116 Ibid., p 6. 117 Lopez 2015, p 801. 118 Ibid., p 813 fn 58. 119 Ibid., p 807, citing Halbwachs fn 16-7. 120 Fletcher and Weinstein 2002, p 605. 121 Indeed, scholars like Rachel Lopez advocate for a more prominent place of collective memory to be accorded in criminal trials. See Lopez 2015, p 799. 115

9 Post-Conflict Justice: Extending International Criminal …

251

Lastly, additional evidence gleaned about the political context and armed networks behind war crimes could help battle revisionism, and attempts to whitewash the crimes of collectives. In a recent study of the legacy of the International Criminal Tribunal for the former Yugoslavia (ICTY), Marko Milanovic found that denialism and revisionism are not just alive and well in the former Yugoslavia – they are thriving. For example, twenty years on, barely one-fifth of the Bosnian Serb population believe that any crime (let alone genocide) happened in Srebrenica, while two-fifths say that they never even heard of any such crime.122

9.4.2

Prosecuting Collective Entities: Penetrating the Cloak of Collective Innocence

One of the main challenges of responding to mass atrocity, and preventing it, is to assess how law can implicate the complicit and acquiescent masses who bear some responsibility for the violence even if they are not formally collectively guilty of criminal acts as such.123 In his seminal essay on ‘The Problem of Collective Guilt’, George Fletcher wrote that the crime that a group member commits expresses not only the guilt of the offender, but also the collective guilt of those who deprive offenders of their capacity for self-restraint at a time when acting on criminal impulses is condoned or encouraged by the collective. Shortly after the end of the Second World War, Karl Jaspers wrote about the individual and collective guilt of Germans for Nazi crimes.124 With respect to the latter, he maintained that groups as large as States could be qualified as criminal, and that belonging to a criminal organization, a political party or a State, could in and of itself trigger individual criminal and political responsibility.125 To be sure, joining a criminal collective or failing to extricate oneself from a criminal environment also gives rise to some form of responsibility.126 But how could these aspects of collective responsibility be operationalized in the court of law? One way might be a declaration of criminality 122

Milanovic 2016, p 235. Drumbl 2010, p 26. 124 Jaspers 1946. 125 Jaspers distinguished between four notions of guilt: criminal, political, moral, and metaphysical. Criminal guilt is determined by courts, based on objectively established acts found to be in contravention of the law. Political guilt derives from the status as a citizen of a State, who share some responsibility for the consequences of its actions. Moral guilt refers to the responsibility one has before his or her own conscience, an individual’s moral judgment of all her actions. Finally, metaphysical guilt is born out of a sense of common human solidarity that is not defined by law, the guilt one feels for not having impeded crimes committed against the other for instance. Jaspers maintained that while criminal, moral, and political guilt can all be attributed to an individual, only the first and second has a legal character and can lead to criminal prosecution. Jaspers 1990, pp 45–51. 126 Jaspers referred to this as moral and metaphysical responsibility. Jaspers 1990, pp 53, 86–87. 123

252

I. Nuzov

of a NSE, coupled with an administrative sanction in the form of lustration for individual members of the organization. A membership-based administrative bar on civil service, provided that, similar to the Nuremberg model, the individual was aware of the criminal activity of the group and failed to removed himself from it, might also serve as an impetus for citizens to exercise civic courage in refusing to join in as a member of a political or other organization that propagates hatred or openly persecutes other citizens. As convincingly argued by Drumbl [w]hereas it seems problematic to deter – through fear of distant and deferred punishment – violence once it is imminent or has already begun, it seems somewhat more plausible to inhibit the mainstreaming of hatemongering as politics owing to the consolidation, through law and punishment, of a social consensus regarding the moral unacceptability of such politics.127

In times of armed conflicts or other political upheaval, military structures, whether they belong to a State, a NSAG or a political party, replace individual values with group spirit and group loyalties.128 By causing individual autonomy to give way to group solidarity, NSEs create a moral climate conducive to the commission of international crimes. Referring to the decisive part that certain organizations played in the Nazi movement, during the Nuremberg trial Justice Jackson (the Chief US Prosecutor) remarked that [t]hey served primarily to exploit mob psychology and to manipulate the mob. Multiplying the number of persons in a common enterprise always tends to diminish the individual’s sense of moral responsibility and to increase his sense of security.129

An authoritative and widely-disseminated judgment of an international or hybrid tribunal condemning a group as ‘criminal’ and prescribing non-criminal punishment could more effectively further ICL’s preventative and expressive aims by diffusing the opprobrium of punishment and guilt to the collectives. In Eichmann in Jerusalem, the philosopher Hannah Arendt wrote that the law’s only function is ‘to render justice, and nothing else.’130 Yet she admitted ‘the inadequacy [of] prevailing legal systems and current juridical concepts’ when referring to the dubious grounds used by the Israeli Court to reject Eichmann’s superior order defense and ‘to deal with the facts of administrative massacres organized by the state apparatus’.131 The inadequacy referred to by Arendt has to do with the present inability of international criminal justice to reach the collective aspects of guilt, which is often at stake in transitional contexts. In these circumstances, putting the collective entity on trial might help induce members of the larger public to confront their own moral

127 128 129 130 131

Drumbl 2007, p 174. Kleffner 2009, p 246. Nuremberg Trial Proceedings, vol. 8, 28 February 1946, p 353. Arendt 2006, p 253 Ibid., p 294.

9 Post-Conflict Justice: Extending International Criminal …

253

guilt and complicity. This is because the trial would be sure to raise these issues.132 Even a declaratory judgment, with the opprobrium of criminality it bears, or an order to pay reparations, could achieve the recognition of collective guilt, which bears important social associations, particularly for victims. As explained by Fletcher, ‘[e]ven if the guilty are not punished, they put themselves in a morally subordinate position that enables the former victims to regain lost dignity.’133

9.4.3

The Disarticulating Potential of System Criminality

Systemic problems require systemic solutions. As argued above, in trials of extraordinary crimes, responsibility should not only be located at the individual level, but should also address the system within which individual behavior is embedded.134 The dismantling of the system, along with sanctions for having joined a pernicious collective, provides for more effective long-term deterrence prevention than individual criminal responsibility. It is suggested that one way that ‘systemic crimes’ should be addressed is by including NSEs in the indictments along with individuals, and subjecting them to a sui generis sanctions regime. Placing the collective at the center of the trial might help to dismantle the organizations, institutions and mechanisms that facilitated violence, thereby preventing the reoccurrence of abuses and strengthening the rule of law.135 As noted by Drumbl, despite the ‘extraordinary nature of atrocity’, its modality of punishment, theory of sentencing, and process of determining guilt or innocence remain disappointingly ordinary.136 Indicting both the individual and the collective provides a way of recognizing the extraordinary nature of war crimes, crimes against humanity and genocide, namely that there are in fact two perpetrators – the individual and the collective entity.137 It seems logical then to attempt to design international trials of ‘system crimes’ around the culpability of both the individual agent of the entity and the organization that facilitated, encouraged or perpetrated the crime. If the legal entity is to be sanctioned, the ‘classical’ criminal penalties need certain modifications and adjustments.138 There have been many efforts to come up with the contents of the rules applicable to the criminal responsibility of NSEs. The

132

Osiel 1997, p 173. Fletcher 2005, p 1569. The collective guilt in the sentencing process could also offer a concrete and practical way to recognize the mitigating effect of the collective’s guilt on the responsibility of the individual offender. See Fletcher 2005, p 1539. 134 Nollkaemper 2009, p 3. 135 Lopez 2015, p 842. 136 Drumbl 2005, p 574. 137 Fletcher 2005, p 1539. 138 Eser 2009, p 233. 133

254

I. Nuzov

draft of the Rome Statute concerning penalties applicable to legal persons contained ‘dissolution, … closure, forfeiture of proceeds, property and assets obtained by criminal conduct, and appropriate forms of reparation.’139 Drumbl proposed disgorging the benefits of group violence, compelling community service, redistributing wealth, and lustrations.140 But there should not be a uniform approach to designing the content of sanctions for collective entities. In certain cases, even a declaration of criminality could serve as a significant symbolic message of public disapproval of a group responsible for abuses. One of the benefits of international criminal tribunals other than the ICC is that because of their ad hoc nature, the remedies offered upon the finding of criminal responsibility of NSEs can be more finely tuned to the collective needs of communities uprooted by mass violence.141 In addition to orders of dissolution, the possibility of lustrations could be the most far-reaching in dismantling institutions and the collective entity in question, which could help suppress and prevent the resurrection of hateful groups and ideologies. The finding of criminality of an organization could form the basis of subsequent legislation or order subjecting individual members to an administrative ban from service in positions of public influence. While it remains a controversial measure, the European Court of Human Rights found measures of lustration of personnel that were directed at former members of a former totalitarian party lawful, particularly in times of transition from a communist regime to a democracy.142 Since only a fraction of persons involved in atrocities are ever brought to trial, lustrations have also been said to be important in bridging the ‘impunity gap’.143 Further, when a trial for mass atrocities implicates a collective entity, it might serve as an impetus to greater institutional change. One of the major criticisms with the imposition of guilt on a collective lies in sanctioning those who are merely passive participants in an organization later deemed criminal. Concerns with impugning individuals by association could be mitigated by designing the criminal responsibility of OCE’s based on the attribution of individual criminality to the entity, not by attributing the criminality of the entity to an individual – the Nuremberg model – and by limiting sanctions to declaratory relief and administrative, not criminal, penalties.

139 UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court 1998a, Article 76, p 49. 140 Drumbl 2005, p 580. 141 Lopez 2015, p 825. 142 See e.g. ECtHR, Chodynicki v. Poland (dec.), 2 September 2008, no. 17625/05. 143 Office of the High Commissioner for Human Rights 2006, p 9. Office of the High Commissioner for Human Rights 2006, p 5.

9 Post-Conflict Justice: Extending International Criminal …

9.4.4

255

Model of Attribution: The French Model Plus Articles on Responsibility of International Organizations

Even if the state of international law has advanced to accept that NSEs can incur into criminal responsibility through actions that are criminal, their capability to act (i.e. the actus reus), with the degree of culpability for their commission (i.e. the mens rea), remains tied to natural persons.144 Most models sanctioning collective entities for criminal conduct impute the acts of natural persons to the legal entity.145 But different modalities of attribution of individual liability to the entity have emerged in domestic systems, and legal scholars have offered many more. Some propose basing criminal responsibility on the dichotomy of primary and secondary rules of international law, similar to the draft articles on State responsibility or responsibility of international organizations.146 Others suggest a model targeting NSEs directly but limiting their responsibility to crimes of complicity.147 In the theory of organizational responsibility established at Nuremberg, the IMT could declare an indicted organization as criminal, and then separate proceedings would subject individual members of the relevant organization to criminal liability for membership in a criminal organization.148 The declaratory aspect of the Nuremberg model finds resonance in modern treaties,149 but it was designed to effect individual culpability by membership to the criminalized group. However, the way that the organization was found to be criminal by the IMT is worth elaborating on in the present context. In its operative section of the Judgment relevant to organizations, the IMT ruled that ‘[t]he Leadership Corps was used for purposes which were criminal under the Charter and involved … the persecution of the Jews, the administration of the slave labor program, and the mistreatment of prisoners of war’150 (emphasis added).

144 Eser 2009, pp 231–232, noting that even so-called ‘system contingent’ models of criminal sanction, where stand-alone corporate criminal responsibility rests on defects within the organizational system, still require some proof of illegal acts or omissions by natural persons, resembling elements of the ‘imputational model’. 145 Ibid., pp 232–236. For instance, in Japan, a legal person is liable to punishment where its agent, employee or other representative (natural persons) commits an offence. Similar provisions exist in Belgium, Article 5 of the Belgian Criminal Code, France, 104 Under Article 121-2 of the French Criminal Code, Spain, Article 31 bis of the Spanish Criminal Code, and Lebanon, Article 210 of the Lebanese Criminal Code. 146 Bílková 2015, pp 280–281. See also Kleffner 2009, p 259. 147 See e.g. Kelly 2012. 148 IMT Charter, above n. 63, Article 10, providing that ‘[i]n cases where a group or organization is declared criminal by the [International Military] Tribunal the competent national authority of any Signatory shall have the right to bring individuals to trial for membership therein before national, military, or occupation courts. In any such case the criminal nature of the group or organization is considered proved and shall not be questioned.’ 149 See e.g. Convention on the Crime of Apartheid, above n. 62. 150 IMT Judgment, above n. 61, p 86.

256

I. Nuzov

With such prose the IMT confirmed that the liability of an organization follows the individual, and not the other way around. Although this chapter will not attempt to elaborate a model of liability for NSEs, it will endorse the final French proposal on collective responsibility for the Rome Statute.151 This proposal, presented by France on 3 July 1998, would have seen juridical persons charged alongside individual defendants, and convicted for crimes only upon an individual conviction. In this respect, it is worth noting that the proposal’s requirement that the natural person charged was in ‘position of control’ and was acting on behalf of the entity would leave the possibility of indicting an entity only if the most senior members of the organization had perpetrated the crime in question. Substituting the ‘position of control’ requirement with an agency requirement of the likes of DASR and IOs might open the possibility of convicting NSEs when the acts of foot soldiers impugn an organization as a whole.

9.5

Conclusion

Transitions from a regime characterized by mass human rights abuses, often committed during armed conflicts, require the recalibration of entire societies and redress for hundreds of thousands, if not millions, of victims. This is due to the systemic nature of war crimes, crimes against humanity, and genocide, which are usually committed by individuals on behalf or as part of a group and while carrying out the group’s objectives.152 The individualization of guilt for international crimes has resulted in only tangential attempts to address their collective nature. One of the fundamental flaws of exclusive focus on individual criminal responsibility is that it implies the detachment of an individual from what surrounds him/her, of judging him/her outside of his/her community, the social, political or legal considerations that would define him/her otherwise.153 The concentration on the individual also contributes to the diffusion of the Western vision of culpability, rejecting diverging local perceptions that might attribute greater importance to collective, restorative forms of justice (such as the Gacaca in Rwanda in the aftermath of genocide).154 These are perhaps some of the reasons why the ICTY’s work, as summed up by Milanovic, seems ‘to be incapable of penetrating the collective consciousness of these [affected] communities’.155 Individual criminal responsibility as the sole form of penal sanction is also unlikely to provide justice to victims of atrocities who might only see a handful of

151 152 153 154 155

Clapham 2000, p 150. Nollkaemper 2009, pp 4–5. Jaspers 1990, p 85. Mégret 2013, p 102. Milanovic 2016, p 1366.

9 Post-Conflict Justice: Extending International Criminal …

257

perpetrators tried and punished for mass crimes. The empirical work of Fletcher and Weinstein has demonstrated that the focus on individual perpetrators is more likely to result in the myth of collective innocence, or even the strengthening of a feeling of support and identification with the prosecuted individuals, rather than leading to a process of self-reflection, repentance and reconciliation with the victims.156 Critics of collective responsibility proffer numerous reasons for not holding entities responsible for international crimes. Most center around concerns that group liability may result in mass imprisonment and cycles of collective guilt, based on the fundamental assumption that liberal legalism is irreconcilable with the idea of legal sanctions against group members.157 There is great skepticism, and rightly so, of the Nuremberg model, where the criminality of certain organizations led to the imposition of criminal responsibility on individual members merely by association, provided certain conditions related to such association were met.158 Still, there can be no genuine social reconstruction and pacification both at the national and international level as long as the role of passive members of a criminal group, and their responsibility, is not addressed to some meaningful extent.159 This chapter has suggested several design features for the trials of NSEs for system crimes to limit individual guilt by association. This could be achieved by naming the OCE on the indictment together with an agent accused of committing a ‘system crime,’ conditioning the OCE’s criminality on the guilt of the individual carrying out the crime. Further, a sui generis sanctions regime could include, depending on the context, declaratory relief and orders of dissolution, reparations, disgorgement of profits and administrative bar to public service. Even declaratory relief in the form of finding an organization criminal could enhance the expressive value of trials in the aftermath of mass atrocities, encouraging a public reckoning with the past and building solidarity during the process of reflection on the nature of violence. When the truth consolidates as a result of a judicial pronouncement, which is cloaked in a mantle of authority and occurs through rules of evidence, the process can convey an aura of reliable impartiality helping to restore trust in the rule of law.160 Other critics argue that NSEs are already illegal in the national laws of the State they are fighting against (as in the case of NSAGs), or are regulated (in the case of corporations), and are already sufficiently addressed by the work of the UN Security Council, which outlaws certain groups, freezes their assets and imposes restrictions such as travel bans.161 Despite significant achievements in these respects, domestic laws are currently scarcely enforced vis-à-vis collective entities. The role of the UN Security Council has been insufficient to address the current accountability gap for a

156 157 158 159 160 161

Fletcher and Weinstein 2002; and Fletcher 2005. See Schachar 2013, p 341. IMT Charter, above n. 63, Articles 9 and 10. Gattini 2009, p 115. Drumbl 2010, p 34. Clapham 2008, p 920.

258

I. Nuzov

number of reasons. For one, the UN Security Council is a political body hampered by a chronic inability to act when international crimes are taking place. Moreover, it does not impose any direct sanctions on the NSE’s as such, requiring States to execute these, nor can it be predictable or consistent in its pronouncements.162 Because it is not a judicial determination, the process of listing and delisting is fraught with arbitrariness and abuse. Numerous challenges to holding NSE’s accountable for violations of ICL and IHL remain. From the legal standpoint, a relative scarcity of legal instruments criminalizing the conduct of NSEs directly militates against their penal prosecution, and the unwillingness of States to leave their corporations, including PMCs, at the mercy of international courts will continue impeding the development of ICL with respect to collectives by way of treaty law. Nevertheless, ICL has evolved significantly since the Nuremberg trials. This evolution has been prompted, on the one hand, by States agreeing to bring individuals to justice for atrocities, which resulted in the creation of permanent or ad hoc international tribunals and their subsequent jurisprudence. Many of the legal concepts first developed by the ICTY and prescribed in the Rome Statute of the ICC have become accepted as customary international law. A parallel development, led by domestic criminal law, recognizes the need to regulate organizations, which have become increasingly involved in civil, political, social and economic aspects of the lives of every society. The preceding sections of this chapter detail the domestic and international developments that signal the crystallization of a general principle of international law that NSEs can commit crimes. Holding NSEs that are bound by primary rules of IHL, ICL and international human rights law responsible for transgressing these rules would seem to be the next logical step.163

References Arendt H (2006) Eichmann in Jerusalem: A Report on the Banality of Evil. Penguin Books, New York. Bellal A (2017) Non-State Armed Groups in Transitional Justice Processes: Adapting to New Realities of Conflict. In: Seils P, Duthie R (eds) Justice Mosaics: How Context Shapes Transitional Justice in Fractured Societies. New York, International Center for Transitional Justice, pp 235–257. Bassiouni C (1989–1990) Functional Approach to “General Principles of International Law”. Michigan Journal of International Law 11:768–818. Bassiouni C (ed) (1999) International Criminal Law: Crimes, 2nd edn. Transnational Publishers, Ardsley. Bílková V (2015) Establishing Direct Responsibility of Armed Opposition Groups for Violations of International Humanitarian Law? In: Gal-Or N, Ryngaert C, Noortmann M (eds) Responsibilities of the Non-State Actor in Armed Conflict and the Market Place. Brill Nijhoff, Leiden/Boston, pp 263–284.

162 163

Drumbl 2010, p 375. Bílková 2015, p 277.

9 Post-Conflict Justice: Extending International Criminal …

259

Cassese A (2008) Discussion - Boundary of Corporate Liability and the Nature of International Crimes: Between Individual Responsibility and State Criminality. Journal of International Criminal Justice 6:947–979. Clapham A (2000) The Question of Jurisdiction Under International Criminal Law Over Legal Persons: Lessons from the Rome Conference on an International Criminal Court. In: Kamminga M, Zia-Zarifi S (eds) Liability of Multinational Corporations Under International Law. Kluwer Law International, The Hague, pp 139–195. Clapham A (2006) Human Rights Obligations of Non-State Actors. Oxford University Press, Oxford. Clapham A (2008) Corporations and Armed Opposition Groups. Journal of International Criminal Justice 6:899–926. Clapham A (2012) Brierly’s The Law of Nations, 7th edn. Oxford University Press, Oxford. David E (2002) Principes de droit des conflits armés, 3rd edn. Bruylant, Brussels. De Bondt W et al. (2012) Liability of Legal Persons for Offences in The EU. Maklu Publishers, Antwerp. Dickinson L (2005) Government for Hire: Privatizing Foreign Affairs and the Problem of Accountability Under International Law. William & Mary Law Review 47:135–237. Drumbl M (2005) Collective violence and individual punishment: the criminality of mass atrocities. Northwestern University Law Review 99:539–610. Drumbl M (2007) Atrocity, Punishment, and International Law. Cambridge University Press, Cambridge. Drumbl M (2010) Accountability for System Criminality. Santa Clara Journal of International Law 8:373–382. Eser A (2009) Criminality of Organizations: lessons from domestic law – a comparative perspective. In: Nollkaemper A, van der Wilt H (eds) System Criminality in International Law. Cambridge University Press, Cambridge, pp 222–237. European Center for Constitutional and Human Rights (2018) Landmark Decision in Lafarge Case. https://www.ecchr.eu/nc/en/press-release/landmark-decision-in-lafarge-case/. Accessed 14 March 2019. Fletcher L (2005) From indifference to engagement: bystanders and international criminal justice. Michigan Journal of International Law 26:1013–1096. Fletcher L, Weinstein H (2002) Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation. Human Rights Quarterly 24:573–639. Gattini A (2009) A historical perspective: from collective to individual responsibility and back. In: Nollkaemper A, van der Wilt H (eds) System Criminality in International Law. Cambridge University Press, Cambridge, pp 101–126. Grzebyk P (2014) The Role of the Polish Supreme National Tribunal in the Development of Principles of International Criminal Law. In: Bergsmo M, Ling C, Yi P (eds) Historical Origins of International Criminal Law: Volume 2. Yorkel Opsahl Academic EPublisher, Brussels, pp 603–630. Harvard Law Review (2001) Developments in the law – International Criminal Law. Harvard Law Review 114: 2025–2048. International Center for Transitional Justice (n.d.) Criminal Justice. https://www.ictj.org/our-work/ transitional-justice-issues/criminal-justice. Accessed 14 April 2019. International Committee of the Red Cross (n.d.) Customary IHL Database. https://ihl-databases. icrc.org/customary-ihl/eng/docs/v1_rul. Accessed 13 October 2019. International Committee of the Red Cross (2016) Commentary on the First Geneva Convention, 2nd edn. Cambridge University Press, Cambridge. https://ihl-databases.icrc.org/ihl/full/GCIcommentary. Accessed 14 April 2019. Jaspers K (1946) Die Schuldfrage: ein Beitrag zur deutschen Frage. Artemis, Zurich. Jaspers K (1990) La Culpabilité Allemande. Editions de Minuit, Paris. Kelly M (2012) Prosecuting Corporations for Genocide Under International Law. Harvard Law & Policy Review 6:339–367.

260

I. Nuzov

Kleffner J (2009) The Collective Accountability of Organized Armed Groups for System Crimes. In: Nollkaemper A, van der Wilt H (eds) System Criminality in International Law. Cambridge University Press, Cambridge, pp 238–264. Lang A (2008) Punishment, Justice and International Relations: Ethics and Order after the Cold War. Routledge, Abingdon. Lauterpacht H (1958) Some Observations on the Prohibition of “Non Liquet” and the Completeness of the Law. In: Verzijl (ed) Symbolae Verzijl. Présentées au Professeur J.H. W. Verzijl à l’occasion de son LXX-ième anniversaire. M. Nijhoff, The Hague. Lopez R (2015) The (Re)collection of Memory After Mass Atrocity and the Dilemma for Transitional Justice. New York University Journal of Law and Policy 48:799–853. Maršavelski A (2014) Responsibility of Political Parties for Criminal Offenses: Preliminary Observations, Challenges and Controversies. In: Getos A, Albrecht H, Kilchling M (eds) Mapping the Criminological Landscape of the Balkans. Duncker & Humblot, Berlin, pp 499–525. Mégret F (2013) Les angles morts de la responsabilité penale individuelle en droit international. Revue interdisciplinaire d’études juridique 71:83–136. Milanovic M (2016) The Impact of the ICTY on the Former Yugoslavia: An Anticipatory Post-Mortem. American Journal of International Law 110:233–259. Muñoz-Rojas D, Frésard J (2004) The Roots of Behaviour in War: Understanding and Preventing IHL Violations. International Review of the Red Cross 86:189–206. Nollkaemper A (2009) Introduction. In: Nollkaemper A, van der Wilt H (eds) System Criminality in International Law. Cambridge University Press, Cambridge, pp 1–25. Nollkaemper A (2010) Systemic Effects of International Responsibility for International Crimes. Santa Clara Journal of International Law 8:313–352. Nowak M, Kozma J (2009) A World Court of Human Rights. http://www.eui.eu/Documents/ DepartmentsCentres/AcademyofEuropeanLaw/CourseMaterialsHR/HR2009/Scheinin/Scheinin ClassReading2.pdf. Accessed 1 August 2018. Office of the High Commissioner for Human Rights (2006) Rule of Law Tools for Post-Conflict States: Prosecutorial Initiatives. UN Doc HR/PUB/06/4. Office of the High Commissioner for Human Rights (2011) Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework. UN Doc. HRIPUB/II/04. Osiel M (1997) Mass Atrocity, Collective Memory, and the Law. Transaction Publishers, New Jersey/New Brunswick. Ramasastry A, Thompson R (2006) Commerce, Crime and Conflict: Legal Remedies for Private Sector Liability for Grave Breaches of International Law: A Survey of Sixteen Countries, FAFO. https://www.biicl.org/files/4364_536.pdf. Accessed 31 May 2019. Reisman WM (2012) The Quest for World Order and Human Dignity in the Twenty-First Century: Constitutive Process and Individual Commitment. Collected Courses of the Hague Academy of International Law 351. http://dx.doi.org/10.1163/1875-8096_pplrdc_ej.9789004227255.009_ 381. Accessed 13 October 2019. Rhyne C (1971) International Law. The Substance, Processes, Procedures and Institutions for World Peace with Justice. CLB Publishers, Washington. Sassòli M (n.d.) How Does Law Protect in War, online edition, https://casebook.icrc.org/law/ implementation-mechanisms. Accessed 4 May 2019. Sassòli M (2002) State responsibility for violations of international humanitarian law. International Review of the Red Cross 84:401–434. Schachar E (2013) Exploring International Criminal Law’s Reluctance to Resort to Modalities of Group Responsibility. Journal of International Criminal Justice 11:331–349. Stewart J (2014) The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute. New York University Journal of International Law & Politics 47:121– 206.

9 Post-Conflict Justice: Extending International Criminal …

261

Telesur TV (2017) Colombian Companies Charged for Crimes Against Humanity, https://www. telesurenglish.net/news/Colombian-Companies-Charged-for-Crimes-Against-Humanity–201702040010.html. Accessed 31 May 2019. Thompson R et al. (2009) Translating Unocal: The Expanding Web of Liability for Business Entities Implicated in International Crimes. George Washington International Law Review 40:841–902. UN Commission on Human Rights (2003) Norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights, Fifty-Fifth session. UN Doc. E/CN.4/Sub.2/2003/12/Rev.2. UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (1998a) Report of the Preparatory Committee on the Establishment of an International Criminal Court. UN Doc A/CONF.183/2/Add.1. UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (1998b) Summary Records of the Plenary Meetings and of the Meetings of the Committee of the Whole, Rome, 15 June–17 July 1998, Official Records. UN Doc. A/ CONF.183/C.lISR.1. UN General Assembly (2006) Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law. UN Doc. GA Res. A/RES/60/147. UN Human Rights Council (2014) Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights. UN Doc. A/HRC/RES/26/9. UN Human Rights Council (2016) ‘They came to destroy’: ISIS Crimes Against the Yazidis. UN Doc. A/HRC/32/CRP.2. UN Human Rights Council (2018) Legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises. Zero Draft. https://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/Session3/ DraftLBI.pdf. Accessed 14 April 2019. UN International Law Commission (2001) Report of the International Law Commission on the work of its Fifty-third session, Official Records of the General Assembly, Fifty-sixth session, Supplement No. 10, 43–59. UN Doc. A/56/10. UN International Law Commission (2011) Draft articles on the responsibility of international organizations. Adopted by the International Law Commission at its sixty-third session. UN Doc. A/66/10. UN International Law Commission (2017) Report of the International Law Commission Sixty-ninth session, General Assembly Official Records Seventy-second Session, Supplement No. 10. UN Doc. A/72/10. UN Secretary General (2004) The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies. UN Doc. S/2004/616. UN Security Council (1997) Resolution 1132. UN Doc. S/RES/1132. UN Security Council (1998) Resolution 1171. UN Doc. S/RES/1171. UN Security Council (1999) Resolution 1267. UN Doc. S/RES/1267. UN Security Council (2000) Resolution 1333. UN Doc. S/RES/1333. UN Security Council (2001) Resolution 1373. UN Doc. S/RES/1373. UN Security Council (2002) Resolution 1390. UN Doc. S/RES/1390. UN Security Council (2003a) Resolution 1455. UN Doc. S/RES/1455. UN Security Council (2003b) Resolution 1493. UN Doc. S/RES/1493. UN Security Council (2004a) Resolution 1526. UN Doc. S/RES/1526. UN Security Council (2004b) Resolution 1533. UN Doc. S/RES/1533. UN Security Council (2005a) Resolution 1596. UN Doc. S/RES/1596. UN Security Council (2005b) Resolution 1617. UN Doc. S/RES/1617. UN Security Council (2005c) Resolution 1649. UN Doc. S/RES/1649. UN Security Council (2006a) Resolution 1698. UN Doc. S/RES/1698. UN Security Council (2006b) Resolution 1730. UN Doc. S/RES/1730.

262

I. Nuzov

UN Security Council (2006c) Resolution 1735. UN Doc. S/RES/1735. UN Security Council (2007) Resolution 1778. UN Doc. S/RES/1778. UN Security Council (2008a) Resolution 1807. UN Doc. S/RES/1807. UN Security Council (2008b) Resolution 1814. UN Doc. S/RES/1814. UN Security Council (2008c) Resolution 1822. UN Doc. S/RES/1822. UN Security Council (2009) Resolution 1904. UN Doc. S/RES/1904. UN Security Council (2011) Resolution 1988. UN Doc. S/RES/1988. UN Security Council (2012) Resolution 2083. UN Doc. S/RES/2083. UN Security Council (2014a) Resolution 2161. UN Doc. S/RES/2161. UN Security Council (2014b) Resolution 2170. UN Doc. S/RES/2170. UN Security Council (2015a) Resolution 2199. UN Doc. S/RES/2199. UN Security Council (2015b) Resolution 2253. UN Doc. S/RES/2253. Weiler J et al. (eds) (1989) International Crimes of States: A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility. Walter de Gruyter, Berlin/New York. Wood T (2013) Extending International Human Rights Obligations to Political Parties. Cambridge Journal of International and Comparative Law 3:1–21. Zegveld L (2002) Accountability of Armed Opposition Groups in International Law. Cambridge University Press, Cambridge.

Ilya Nuzov Eastern Europe and Central Asia Desk Director, International Federation for Human Rights. All of the views expressed in this chapter are those of the author and do not represent those of the organization. The author wishes to thank the editors for their thoughtful suggestions.

Part III

The Development of IHL by NSAs

Chapter 10

Uses of IHL by the International Court of Justice: A Critical Approach Towards Its Role in the International Legal Arena Brian E. Frenkel, Sebastián A. Green Martínez and Nahuel Maisley

Contents 10.1 Introduction...................................................................................................................... 266 10.2 IHL Decisions Rendered by the ICJ............................................................................... 267 10.2.1 The Corfu Channel Case ................................................................................... 268 10.2.2 Military and Paramilitary Activities in and Against Nicaragua ........................ 268 10.2.3 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory .............................................................................................................. 272 10.2.4 Legality of the Threat or Use of Nuclear Weapons .......................................... 277 10.2.5 The Genocide Case ............................................................................................ 278 10.3 Judicial Restraint and Selectivity .................................................................................... 280 10.3.1 The Request for Interpretation of the Preah Vihear Decision.......................... 281 10.3.2 The Nuclear Weapons Advisory Opinion.......................................................... 282 10.3.3 The Marshall Islands Cases............................................................................... 285 10.4 Conclusions: Voices and Silences, from Legal Adjudication to the Pacific Settlement of Disputes and Back ...................................................................................................... 287 References .................................................................................................................................. 293

B. E. Frenkel (&)
S. A. Green Martínez
N. Maisley School of Law, University of Buenos Aires, Buenos Aires, Argentina e-mail: [email protected] S. A. Green Martínez e-mail: [email protected] N. Maisley e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 E. Heffes et al. (eds.), International Humanitarian Law and Non-State Actors, https://doi.org/10.1007/978-94-6265-339-9_10

265

266

B. E. Frenkel et al. International lawyers have habitually paused to reexamine their subject. It is a good habit. At this juncture reexamination is essential … ‘Is International Law used?’ One may tread some old paths of international law and find them at times quite overgrown and little traveled… Jessup 1988

Abstract The function of the International Court of Justice (ICJ) is to decide in accordance with international law such disputes or advisory opinions that are submitted to it. Although the ICJ has consistently applied and contributed to the development of general public international law, in certain areas such as international humanitarian law (IHL), the Court has gone back and forth between authentic contributions and judicial constraint. In other words, while on certain occasions the ICJ has grounded its decisions on IHL, in other cases it deliberately refrained from doing so, arguably due to the subject matter under consideration or to justify a departure from its previous case law. Instead of describing the decisions rendered by the ICJ regarding IHL issues, this chapter portrays how the Court has selectively applied (and refrained from applying) this legal framework. In doing so, the chapter considers certain factors that may explain this behavior and analyzes them in light of its dual role: as a crucial actor in the pacific settlement of international disputes; and in applying international law.




Keywords International Humanitarian Law International Court of Justice International Law Armed Conflicts Law of War International Legal Discourse Nuclear Weapons




10.1













Introduction

The legal value of the reasoning, considerations and decisions rendered by the International Court of Justice (ICJ or the Court, indistinctively) is paramount to every facet of human activity governed by public international law. Although there is no formal judicial hierarchy among international courts and tribunals, the ICJ has a special place in the pantheon of international law, and its decisions are commonly considered as conclusive and authoritative on the legal questions they address.1 Therefore, due to the value placed upon them, the ICJ’s methods and legal conclusions usually guide not only the decisions of other international tribunals but also every discussion related to international law.2 Given the significance of the decisions of the ICJ, international lawyers have dedicated a considerable amount of time to study their impact on various aspects of public international law. In the case of international humanitarian law (IHL), as 1 2

Shahabuddeen 1996, p 11. Tomka 2013, p 215.

10

Uses of IHL by the International Court of Justice …

267

with other areas of the discipline, there is a significant body of literature exploring how the Court has helped to shape the current regulatory framework.3 This chapter will present a new assessment of the role of the Court in the development of IHL. Our aim is to present an overview of the crucial contributions of the Court to ius in bello, but situating them in a broader institutional, legal and historical context. For that purpose, we will focus not only on the Court’s explicit statements on these matters, but also on its silences – those occasions in which it could have referred to IHL, but did not. As the Uruguayan poet, Eduardo Galeano, once said: ‘only the fools think that silence is a vacuum. Silence is never empty. And, sometimes, the best way to communicate something is to remain silent’.4 The chapter will be divided into three sections. The first will analyse the main judgments and decisions where the ICJ interpreted and applied IHL. The second section will critically approach cases where IHL was relevant, but the Court refrained from referring to this legal regime. The third and final section will reflect upon these findings and present some preliminary conclusions from these developments.

10.2

IHL Decisions Rendered by the ICJ

Although most of the cases decided by the ICJ were not related to armed conflicts,5 the tribunal has indeed had the opportunity to refer to IHL in a number of occasions, either because the main issue in a case concerned IHL or because IHL was collateral to it. This has been particularly challenging for the Court since, as Kreß points out, the Permanent Court of International Justice (PCIJ) had not dealt with IHL at all; the ICJ had thus to develop its own approach to this body of law without any legacy from its predecessor.6 Five decisions are particularly noteworthy: (i) the 1949 Corfu Channel judgment; (ii) the 1986 Military and Paramilitary Activities in and Against Nicaragua judgment; (iii) the 2004 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory advisory opinion; (iv) the 1996 Legality of the Threat or Use of Nuclear Weapons advisory opinion; and (v) the 2007 Genocide case decision. What follows is an overview of the contributions of the ICJ to the development of IHL in these five cases.

3 See, generally, Cassese 2012; Chetail 2003; Doswald-Beck 1997; Greenwood 1997; Greenwood 2015; Kreß 2013; Mollel 2007; Raimondo 2007; Sofaer 2004; Weeramantry 2003; Zyberi 2008; Zyberi 2011. 4 Galeano 2012. 5 Joyner 2009, p 198. 6 Kreß 2013, p 263.

268

B. E. Frenkel et al.

10.2.1 The Corfu Channel Case The first occasion in which the Court dealt with IHL was in the Corfu Channel Case, which concerned a dispute between the United Kingdom and Albania regarding the use of the Corfu Strait by both States. The United Kingdom claimed that Albania was responsible for the existence of mines in the Corfu Channel which exploded as two British ships were passing through it. Albania asserted that it bore no responsibility for this and that, on the contrary, the United Kingdom was responsible for sweeping the area without its consent. The case has become famous for being the first case decided by the ICJ since its creation, for setting the path on procedural and jurisdictional matters, and for its contribution to the future development of the law of the sea. However, for the purposes of this chapter, its relevance lies on two specific points. First, the decision referred to The Hague Convention of 1907, which the Court considered ‘applicable in time of war’.7 Second, the ICJ introduced a concept that has since been repeated in later cases. Regarding the notification of the existence of a minefield in Albanian territorial waters and the warning to the British warships of the imminent danger to which the minefield exposed them, the Court said: Such obligations are based, not on the Hague Convention of 1907 … but on certain general and well-recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war…8

The Court did not provide a precise explanation of what these considerations were or where they emanated from. Indeed, no source(s) of international law were cited in support. However, this has become part of the case-law of the ICJ, as the cases below will show, opening the door for its future invocation by subsequent judgments.

10.2.2 Military and Paramilitary Activities in and Against Nicaragua In 1986, the ICJ ruled in the Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua vs. United States of America). This case, one of the most sensitive and publicized in the ICJ’s history, concerned the United States’ support of paramilitary groups operating against the Sandinista government of Nicaragua. Nicaragua accused the United States of mining their waters and ports, of giving support to and conducting the activities of the groups (i.e. the ‘contras’), directly violating Nicaragua’s territory and air space, and of imposing unilateral 7

ICJ, Corfu Channel case (United Kingdom v. Albania), Judgment, 9 April 1949, I.C.J. Reports 1949, pp 4, 22. 8 Ibid. (emphasis added).

10

Uses of IHL by the International Court of Justice …

269

economic measures against Nicaragua.9 From a legal perspective, this case became notorious both due to the absence of the respondent (the United States) during the merits phase and for being the case in which the Court stipulated a new test in order to attribute the conduct of a non-State actor to a State: the ‘effective control’ test.10 In geopolitical terms, the case is famous because the Court decided against the world’s most prominent superpower, and – at that time – also one of its main supporters.11 In this case the Court had to deal with a jus ad bellum issue, namely, the alleged exercise of the right of self-defence by the United States in response to Nicaragua’s support of guerrilla activities and Nicaragua’s direct attacks in the territory of Honduras and El Salvador, among others.12 At this point, the Court reaffirmed the requisites for this right to be exercised, with similar content both under the United Nations Charter and under customary international law.13 The Court rejected the argument submitted by the United States, explaining that the actions performed by Nicaragua did not amount to an ‘armed attacked’ as required under customary law14 and that in any case the exercise of collective self-defence had not been requested by those States that had supposedly come under attack.15 Additionally, this was the first case in which the Court considered the classification of an armed conflict – a necessary step in order to determine the scope of IHL obligations.16 In this vein, the Court said that: The conflict between the contras’ forces and those of the Government of Nicaragua is an armed conflict which is ‘not of an international character’. The acts of the contras towards the Nicaraguan Government are therefore governed by the law applicable to conflicts of that character; whereas the actions of the United States in and against Nicaragua fall under the legal rules relating to international conflicts.17

This paragraph was vital to the development of the current methodology required for the classification of a conflict and the determination of the applicable law. This decision clarified that, in a similar scenario, it would be possible to have at the same time both an international and a non-international armed conflict. Although it may sound simplistic nowadays, this possibility had hardly been 9

ICJ, Case concerning Military and Paramilitary Activities in und against Nicaragua (Nicaragua v. United States of America), Judgment, 27 June 1986, I.C.J. Reports 1986, p 14 (Nicaragua), para 15. 10 A further development of this test, and its relationship with a different test will be presented below, when referring to the Genocide case. 11 D’Amato 1986, pp 331–332. See also Simon P (1985) Reagan's World-Court Error, New York Times, 16 October 1985. https://www.nytimes.com/1985/10/16/opinion/reagan-s-world-courterror.html. Accessed 28 July 2018. 12 Nicaragua, above n. 9, para 128. 13 Ibid., paras 177–178. 14 Ibid., para 198. 15 Ibid., para 199. See also Greenwood 1999, pp 248, 263–64; Müllerson 1999, pp 268, 271–73. 16 Greenwood 2015, p 265. 17 Nicaragua, above n. 9, para 219.

270

B. E. Frenkel et al.

discussed before the Nicaragua judgment, considering whether the former could then supersede the latter. This exercise constituted a key contribution to determine which provisions of IHL should be applicable to a situation, and therefore which obligations each party may have. In this vein, when considering applicable obligations to the parties of an armed conflict,18 in Nicaragua, the Court focused on the provisions of Common Article 3 to the Geneva Conventions (CA3), finding that: Because the minimum rules applicable to international and to non-international conflicts are identical, there is no need to address the question whether those actions must be looked at in the context of the rules which operate for the one or for the other category of conflict. The relevant principles are to be looked for in the provisions of Article 3 of each of the four Conventions of 12 August 1949, the text of which, identical in each Convention, expressly refers to conflicts not having an international character.19

This was certainly an interesting development. Although the Court acknowledged that CA3 expressly refers to a NIAC, it nonetheless expanded its scope to IACs by considering that this provision reflected ‘minimum rules’ which apply to all armed conflicts.20 Therefore, it arguably preferred not to address the particularities of each category of armed conflict. Further, the Court decided to avoid an obstacle—the fact that the United States had, at the time, entered a reservation to the ICJ’s jurisdiction concerning obligations arising from multilateral treaty obligations—21 by referring to the ‘fundamental general principles of humanitarian law’ to which the Geneva Conventions are ‘in some respects a development, and in other respects no more than the expression.’22 But the ICJ continued its elaboration by considering that CA3 can be 18 Although today it is considered that most of the obligations applicable to an international armed conflict (IAC) are applicable to a non-international armed conflict (NIAC) through customary IHL, this is not the case regarding treaty-based obligations. In this sense, in the case of an IAC, the full extent of the four Geneva Conventions (1949) and the First Additional Protocol (1977) can be applicable. In the case of a NIAC, only Common Article 3 to the Geneva Conventions (CA3) (1949) applies and the Second Additional Protocol to the Geneva Conventions (1977) can be applicable. See Henckaerts and Doswald-Beck 2005, p XXXV; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 609, entered into force 7 December 1978, Article 1.3; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), opened for signature 8 June 1977, 1125 UNTS 609, entered into force 7 December 1978, Article 1. 19 Nicaragua, above n. 9, para 219. 20 Bianchi and Naqvi 2011, p 135. 21 In the jurisdiction phase of the proceedings, the United States highlighted a reservation to the ICJ’s jurisdiction when ‘disputes arising under a multilateral treaty, unless all parties to the treaty affected by the decision are also parties to the case before the Court…’. The Court postponed the discussion to merits and then elaborated on the possibility of having third States as ‘affected’, which would prevent its jurisdiction. The ICJ considered the invocation by Nicaragua of several multilateral treaties, and said that although the Applicant did not invoke the Geneva Conventions, the Court could do it and it focused on CA3. 22 Nicaragua, above n. 9, para 218.

10

Uses of IHL by the International Court of Justice …

271

construed to constitute a ‘minimum yardstick’ in IAC, considering it applicable in addition to ‘the more elaborate rules which are also to apply to international conflicts.’23 This elaboration has proved to be crucial for the development of IHL, as shown by the fact that it has been reaffirmed by other tribunals, such as the International Criminal Tribunal for the Former Yugoslavia (ICTY).24 Moreover, the Court also connected these concepts—the ‘fundamental general principles of humanitarian law’, the ‘minimum rules’, the ‘minimum yardstick’— with its prior reference to ‘elementary considerations of humanity’ made in the above mentioned Corfu Channel Case.25 This path would be later expanded to refer to the content of CA3, as will be presented below.26 Furthermore, the ICJ considered in this case another provision of the 1949 Geneva Conventions: Common Article 1 (CA1), which affirms that ‘[t]he High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances’.27 In this sense, the Court said that under IHL the United States was under the obligation: to ‘respect’ the Conventions and even ‘to ensure respect’ for them ‘in all circumstances’, since such an obligation does not derive only from the Conventions themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression. The United States is thus under an obligation not to encourage persons or groups engaged in the conflict in Nicaragua to act in violation of the provisions of Article 3 common to the four 1949 Geneva Conventions …28

This interpretation of CA1—focusing on a specific obligation not to encourage IHL violations—would not be maintained in later decisions. On the contrary, the Court would subsequently give CA1 a completely different interpretation.29 A final point shall be noted. After affirming that the ‘financial support, training, supply of weapons, intelligence and logistic support’ given by the United States to 23

Ibid.; Zyberi 2008, pp 286–287. ICTY Appeal Chamber, Prosecutor vs. Duško Tadić, Judgment, 15 July 1999, IT-94-1-A (Tadić), para 70. 25 Nicaragua, above n. 9, para 218. See also Chetail 2003, p 261. 26 Zyberi 2008, pp 94–95, 282; Schlütter 2010, p 165; Bianchi and Naqvi 2011, pp 142–143; Chetail 2003, p 240; Greenwood 2015, p 266. 27 1949 Geneva Convention (I) 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; 1949 Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949), opened for signature 12 August 1949, 75 UNTS 85, entered into force 21 October 1950; 1949 Geneva Convention (III) relative to the Treatment of Prisoners of War (1949), opened for signature 12 August 1949, 75 UNTS 135, entered into force 21 October 1950; 1949 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (1949), opened for signature 12 August 1949, 75 UNTS 287, entered into force 21 October 1950, Common Article 1. 28 Nicaragua, above n. 9, para 220 (emphasis added), reaffirmed in para 255. 29 Schlütter 2010, p 166; Kreß 2013, p 281; Chetail 2003, p 263. The different interpretations given by the ICJ to CA1 will be discussed below. 24

272

B. E. Frenkel et al.

the contras in Nicaragua ‘constitute[d] a clear breach of the principle of non-intervention’,30 the Court also considered the change in the purpose of the funding provided by the United States, which by the end of 1984 was restricted only to ‘humanitarian assistance’. Thus, it stated that: [t]here can be no doubt that the provision of strictly humanitarian aid to persons or forces in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law.31 …In the view of the Court, if the provision of ‘humanitarian assistance’ is to escape condemnation as an intervention in the internal affairs of Nicaragua, not only must it be limited to the purposes hallowed in the practice of the Red Cross, namely ‘to prevent and alleviate human suffering’ and ‘to protect life and health and to ensure respect for the human being’; it must also, and above all, be given without discrimination to all in need in Nicaragua, not merely to the contras and their dependents.32

This analysis has been considered a reference point in terms of the work of relief agencies, since it was the ICJ that reaffirmed the conditions that humanitarian assistance must fulfill in order to be in accordance with international law.33 However, in later years, States have employed the humanitarian assistance discourse in order to further other goals, for example, justifying use of force under the doctrines of ‘humanitarian intervention’ or ‘responsibility to protect’.34

10.2.3 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory In July 2004, the Court rendered an Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. The UN General Assembly had asked the ICJ the following: What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?35

From the outset, the underlying political tension that had given rise to the request for an advisory opinion was clear. Indeed, many States, including Israel, opposed

30

Nicaragua, above n. 9, para 242. Ibid. 32 Ibid., para 243. 33 Chetail 2003, p 265; Zyberi 2008, pp 287–289. 34 See e.g. Evans 2004, pp 78–89; Francioni and Bakker 2013, pp 2–14; Johnson 2015, pp 609– 634. 35 UN General Assembly 2003. 31

10

Uses of IHL by the International Court of Justice …

273

the involvement of the ICJ on this question.36 Many arguments were presented to the Court concerning its jurisdiction, among them: the involvement of the UN Security Council in the situation, which, under Article 12 of the UN Charter, should prevent the UN General Assembly’s simultaneous involvement;37 the inexistence of a ‘legal question’,38 and the pure ‘political character’ of the question.39 Moreover, some States asked the Court to use its discretionary power to reject the request.40 In this regard, the main arguments were that t the subject-matter under consideration was actually part of the wider Israeli-Palestinian dispute—thus requiring Israel’s consent before the ICJ could exercise any jurisdiction—41and that issuing an advisory opinion would affect the political solution to the conflict.42 Also, it was argued that the Court lacked the evidence to properly adjudicate the matter.43 Following its usual practice, the Court proceeded to consider firstly whether it had jurisdiction, and should that be the case, if there was any reason why it should decline to exercise it.44 The Court rejected all of these claims, deciding that it had jurisdiction and could address the request for an advisory opinion. Regarding its substance, the Opinion was very rich in a variety of topics. For example, the Court examined a possible de facto annexation by Israel of the Occupied Territories45 and the prohibition of annexation by force,46 The Hague Conventions as reflecting customary IHL,47 and the right to self-determination,48 among others. The ICJ included several other considerations when providing an answer to the question received, giving a lot of attention to some of them. Firstly, the Court focused on the rules of belligerent occupation.49 It considered Israel to be 36

Zyberi 2008, p 309. ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, I.C.J. Reports 2004, p 136 (Wall), paras 24–28. 38 Wall, above n. 37, paras 36–40. 39 Ibid., para 41. 40 Zyberi 2008, p 213. 41 Wall, above n. 37, paras 46–50. 42 Ibid., paras 51–54. 43 Ibid., paras 56–58. 44 Ibid., para 13. 45 Ibid., para 121. 46 Ibid., para 87. 47 Ibid., para 78. See also Zyberi 2008, p 310; Greenwood 2015, pp 272–273. 48 Ibid., para 118, 122. See also Zyberi 2008, pp 131–134. 49 The issue of belligerent occupation was further developed by the Court in ICJ, Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, 19 December 2005, I.C.J. Reports 2005, p 168. There, the Court determined the characteristics of the occupation and focused on crimes related to it, such as looting, plundering and the exploitation of natural resources, including the attribution of those actions to Uganda as Occupying Power. Its contribution to IHL rests on the elaboration of those precise violations of IHL, and on reiterating, once again, the customary character of the rules and the relationship between this branch of international law and the use of force and human rights. See also Zyberi 2008, pp 312–313, 324–326; Greenwood 2015, pp 272–273, 277–279; Kreß 2013, p 288. 37

274

B. E. Frenkel et al.

an Occupying Power and determined the territory in which it exercised its authority. Then, the Court addressed possible IHL violations in the context of this occupation, based on the application of the Fourth Geneva Convention of 1949. Interestingly, the ICJ analyzed Article 6 of that treaty, which makes a distinction between those provisions applicable during the military operations that led to the occupation, and those applicable during the occupation itself. The ICJ found that only those provisions explicitly cited in Article 6 remained applicable at the time of its decision50 and elaborated on them in relation to changes in legislation, the transfer of populations, labor rights, destruction of property and humanitarian relief, finding Israel responsible for violations of IHL.51 Moreover, as Kreß points out, the ICJ took the opportunity to condemn Israel regarding its settlement activity in alleged—and disputed—occupied Palestinian territory, despite the fact that the question posed to it did not include any reference to them.52 Secondly, it reiterated that ‘the protection offered by human rights conventions does not cease in case of armed conflict’,53 and that: [a]s regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.54

Furthermore, it considered applicable the provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Rights of the Child,55 and explained how they had been violated by Israel due to the construction of the wall.56 Thirdly, the Court alluded to the concept of military necessity, as a way of limiting the scope of certain obligations, and stressed that although such exceptions could be argued, it was not convinced of their applicability to the situation before

50

Wall, above n. 37, paras 125–126. As Greenwood has pointed out, this was a novel interpretation, since it was considered that in case of occupation, the entire Fourth Geneva Convention (1949) would result applicable. See Greenwood 2015, p 274. 51 Ibid., para 137. See also Zyberi 2008, p 312; Greenwood 2015, p 275. 52 Kreß 2013, p 287. 53 Ibid., para 106. See also Zyberi 2008, pp 210–211, 214; Chetail 2003, p 240. 54 Ibid., para 106. 55 Ibid., paras 111–112. See also Bianchi and Naqvi 2011, p 136; Zyberi 2008, pp 217–220. 56 In the Advisory Opinion, the ICJ mentioned violations of rights such as liberty and security of the person, privacy, family life, liberty of movement, work, protection and assistance accorded to the family and to children and young persons, the right to an adequate standard of living, including adequate food, clothing and housing, and the right ‘to be free from hunger’, the right to health, the right to education, and similar provisions in the Convention on the Rights of the Child. Wall, above n. 37, paras 127–137. See also Zyberi 2008, pp 212, 214.

10

Uses of IHL by the International Court of Justice …

275

it.57 Unfortunately, the ICJ did not elaborate on the said concept, limiting itself to mention when it can be invoked, but rejecting its application without further explanation. As correctly suggested by Kreß, this was a lost opportunity for the ICJ to clarify a very important IHL issue.58 Fourthly, after declaring the construction of Israel’s wall illegal, the Court referred to the obligations of other States with respect to it. In doing so, it referred to the erga omnes character of certain IHL obligations.59 In this respect, the ICJ reaffirmed that: many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and ‘elementary considerations of humanity’ … that they are to be observed by all States … because they constitute intransgressible principles of international customary law.60

The Court concluded that ‘these rules incorporate obligations which are essentially of an erga omnes character.’61 This line of argument refers once again to these vague concepts created by the Court that establish a minimum yardstick, as mentioned before in relation to CA3. Further, the ICJ presented a new interpretation of the scope of CA1.62 Departing from the abovementioned Nicaragua precedent, it held that: [i]t follows from that provision that every State party to that Convention, whether or not it is a party to a specific conflict, is under an obligation to ensure that the requirements of the instruments in question are complied with.63

The Court found that, given the character and importance of the rights and obligations involved, ‘all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory’ and ‘not to render aid or assistance in maintaining the situation created by such construction.’64 Furthermore, the ICJ held that all States are ‘under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that

57

Wall, above n. 37, para 135. See also Zyberi 2008, pp 316–317; Greenwood 2015, p 276. Kreß 2013, p 288. 59 Wall, above n. 37, para 155. See also Schlütter 2010, p 165; Zyberi 2008, pp 221–222, 318; Kreß 2013, p 281. 60 Wall, above n. 37, para 157. 61 Ibid. 62 Greenwood 2015, p 287. 63 Wall, above n. 37, para 159. In this respect, Kreß points out that this progressive interpretation of CA1 by the ICJ is surprising, since it did not seem to have been the intention of states back in 1949. As he explains, the “Court appeared thirsty for adventure when it embraced such an interpretation without any regard for the contrary point of view – notwithstanding the fact that it refrained from elaborating too much on the precise contours of the duty of third states to react”. Kreß 2013, p 281. 64 Wall, above n. 37, para 159. See also Zyberi 2008, pp 319–320; Schlütter 2010, p 166; Greenwood 2015, p 276. 58

276

B. E. Frenkel et al.

Convention’.65 It also stated that the UN—in particular the UN General Assembly and the UN Security Council—should consider ‘what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated regime, taking due account of the present Advisory Opinion’.66 This statement seemed to be closer to an interaction between different organs of the UN —in this case, the General Assembly and the ICJ—, rather than a legal determination by a court. As such, the ICJ appeared to participate in an inter-organ dialogue through its Advisory Opinion,67 thus, it is possible to consider this element as an exercise of the institutional role that the ICJ has as a principal organ of the UN. Although the Advisory Opinion of the Court was adopted by a strong majority, the question regarding the judicial propriety in exercising its jurisdiction in this case was not so uniform. Judge Buergenthal considered that the ICJ ‘should have exercised its discretion and declined to render the requested advisory opinion’, thus dissenting from its decision to hear the case.68 When explaining his opinion, he stated that he was ‘compelled to vote against the Court’s findings on the merits because the Court did not have before it the requisite factual bases for its sweeping findings, it should therefore have declined to hear the case.’69 In doing so, he followed what the Court had previously said in its Western Sahara Advisory Opinion. At that time, when considering whether or not to exercise its discretion in acting on an advisory opinion request, the ICJ held that the critical question was: whether the Court has before it sufficient information and evidence to enable it to arrive at a judicial conclusion upon any disputed questions of fact the determination of which is necessary for it to give an opinion in conditions compatible with its judicial character …70

Judge Buergenthal considered that the Court should have had before it more information and evidence for analysis, and not limiting its consideration, as when it rejected the argument of the exercise by Israel of its right to self-defense. This argument could have precluded the wrongfulness in this case instead of arriving to the ‘legally dubious conclusion that the right of legitimate or inherent self-defence is not applicable in the present case.’71 On the contrary, he considered that: 65

Ibid., para 159. Ibid., para 160. See also Zyberi 2008, p 222 (emphasis added). 67 In this respect Zyberi opined that ‘[t]he Court’s decision which indicated not only the obligations incumbent upon Israel, but also those of other States and the UN was rather unprecedented, attracting the opposition of a few members of the Court itself’ and that ‘[i]t is only logical that the Court, as a vital part of the UN and indicating the legal consequences for the UN, drew the attention of the GA to taking further steps to achieve a solution to this long-standing crisis in the Middle East’. Zyberi 2008, pp 221, 320. This seemed to be in line with what the ICJ had previously affirmed when it said that the rendering of advisory opinions requested by UN organs ‘represents its participation in the activities of the Organization [i.e. the UN]’. ICJ, Western Sahara, Advisory Opinion, 16 October 1975, I.C.J. Reports 1975, p 12 (Western Sahara), para 23. 68 Wall, above n. 37, Dissenting Opinion Judge Buergenthal, para 1. 69 Ibid. 70 Western Sahara, above n. 67, para 46. 71 Wall, above n. 37, Dissenting Opinion Judge Buergenthal, para 5. 66

10

Uses of IHL by the International Court of Justice …

277

[t]o make that judgment, that is, to determine whether or not the construction of the wall, in whole or in part, by Israel meets that test, all relevant facts bearing on issues of necessity and proportionality must be analysed. The Court’s formalistic approach to the right of self-defence enables it to avoid addressing the very issues that are at the heart of this case.72

That is why he affirmed that ‘the Court says that it “is not convinced” but it fails to demonstrate why it is not convinced, and that is why these conclusions are not convincing’.73 Judge Buergenthal’s dissent seems compelling. In this sense, Kreß explains that having the Court ‘succumbing to the temptation to make the decision politically palatable has, unsurprisingly, been conducive to the Opinion’s positive reception in the international political arena’,74 although this ‘abdication of its judicial function’75 may have affected the Court’s credibility.76 Certainly, it could have been a good opportunity for the Court to examine in depth certain IHL issues that it preferred to avoid, or even more wisely, to keep silence and decline providing an opinion.

10.2.4 Legality of the Threat or Use of Nuclear Weapons In its Legality of the Threat or Use of Nuclear Weapons Advisory Opinion, the ICJ contributed to the development of IHL while it simultaneously exercised judicial restraint. While the former is analysed in the present section, the latter issue will be considered in more detail in the next section of this chapter when addressing the silences of the Court. On that occasion, the UN General Assembly submitted the following question to the Court: ‘Is the threat or use of nuclear weapons in any circumstance permitted under international law?’77 The request entailed, in the words of Judge Schwebel, ‘a titanic tension between State practice and legal principle’. He also warned that it was relevant ‘not to confuse the international law we have with the international law we need.’78 In general terms, the Court established that no customary rule prohibiting the use of nuclear weapons could be found in current international law. After reviewing relevant international agreements, such as the Treaty of Tlatelolco (1967), the Antarctic Treaty (1959)79 and the different positions of States,80 the ICJ concluded

72

Wall, above n. 37, Dissenting Opinion Judge Buergenthal, para 6. Ibid., para 7. 74 Kreß 2013, p 292. 75 Ibid., p 291. 76 Ibid., p 292. 77 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, I.C. J. Reports, p 226, (Nuclear Weapons), para 1. 78 Ibid., Dissenting Opinion of Vice-President Schwebel, p 311. 79 Ibid., para 59. 80 Ibid., paras 60–61. 73

278

B. E. Frenkel et al.

—in a sentence that aligns with the aforementioned sentiment of Judge Schwebel —‘that these treaties could therefore be seen as foreshadowing a future general prohibition of the use of such weapons, but they do not constitute such a prohibition by themselves.’81 In a relevant contribution to the development of IHL, the ICJ found that IHL principles—such as the principle of distinction and not to cause unnecessary suffering—were applicable to nuclear weapons,82 an issue that had previously been obscure.83 The court stated that ‘[i]n view of the unique characteristics of nuclear weapons … the use of such weapons in fact seems scarcely reconcilable with respect for such requirements.’84 Further, it is important to highlight two elements that the ICJ included in its analysis, since they relate to the findings of the other cases mentioned so far. On the one hand, it referred once again to the fact that ‘many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and “elementary considerations of humanity”’ which are ‘to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law’.85 On the other hand, as it had in other decisions, the ICJ mentioned the relationship between IHL and international human rights law (IHRL). In particular, when considering the right to life, it established that: The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the [International] Covenant [of Civil and Political Rights (1966)], can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.86

10.2.5 The Genocide Case In 2007, the ICJ decided on the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide,87 presented by Bosnia and Herzegovina against Serbia and Montenegro. The case started more than a

81

Ibid., para 62. Ibid., paras 85–86. 83 See Dinstein 2004, p 77; Greenwood 2015, p. 269. 84 Nuclear Weapons, above n. 77, para 95. 85 Ibid., para 79. 86 Ibid., para 25. See also Chetail 2003, p 241. 87 ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, 26 February 2007, p 43 (Genocide 2007). 82

10

Uses of IHL by the International Court of Justice …

279

decade before, with a judgment on preliminary objections88 and a request for provisional measures.89 Regarding the facts, Bosnia and Herzegovina asked the ICJ to declare Serbia and Montenegro’s responsibility for the violation of: its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide by intentionally destroying in part the non-Serb national, ethnical or religious group within, but not limited to, the territory of Bosnia and Herzegovina, including in particular the Muslim population.90

Subsidiarily, the Applicant requested the Court to declare that the Respondent had violated other obligations related to the Convention on the Prevention and Punishment of the Crime of Genocide, by its complicity; by aiding and abetting individuals, groups and entities engaged in acts of genocide; by conspiring and inciting to commit genocide; by failing to prevent genocide; by failing to punish acts of genocide, and for failing to transfer individuals accused of genocide or any other act prohibited by the instrument, to the ICTY and to fully co-operate with this Tribunal; and by failing to comply with the provisional measures indicated by the ICJ. Serbia and Montenegro challenged the jurisdiction of the Court, rejected to be the respondent, and answered the merits. The ICJ considered it had jurisdiction, that Serbia and Montenegro, now Serbia, was the continuation of Yugoslavia, and proceeded to consider the merits of the case.91 The Court considered several issues, including: the obligation imposed by the Convention to the contracting parties, the possibility of determining the responsibility of a State in the absence of a prior condemnation of individuals for those acts, possible territorial limits to the obligations, intent to commit genocide and ethnic cleansing, and the definition of protected groups under the Convention. However, the ICJ referred to a specific issue relevant for this chapter: the test to determine when there is an international armed conflict. In this regard, the Court addressed a previous decision by the Appeals Chamber of the ICTY in Tadić. There, the ICTY developed and applied a test of ‘overall control’ to determine whether the acts of a non-State armed group engaged in a civil war could be attributed to a State for the purposes of classifying an armed conflict as either international or non-international in nature.92 The ICJ said, in response to the ‘overall control’ test, that it ‘finds itself unable to subscribe to the [Appeal] Chamber’s view’ with respect to the test’s applicability when it comes to determine a State’s responsibility for international wrongful acts, and reaffirmed the effective

88 ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, 11 July 1996, I.C.J. Reports 1996, p 595. 89 ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, 8 April 1993, I.C.J. Reports 1993, p 3; ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, 13 September 1993, I.C.J. Reports 1993, p 325. 90 Genocide 2007, above n. 87, para 66. 91 Ibid. 92 Tadić, above n. 24, paras 131–132. See also Cassese 2007, pp 655–663; Gibney 2007, p 764.

280

B. E. Frenkel et al.

control test established in Nicaragua, clarifying that it reflects customary international law. Nonetheless, it left open the possibility of applying the ‘overall control’ test when it comes to the classification of armed conflicts under IHL.93 Although this interaction between the tribunals has been discussed from different optics by scholars,94 the recognition of this test of ‘overall control’ as relevant to determine whether there is an international armed conflict is an important contribution by the ICJ, despite the criticism it has received for interpreting that the ICTY’s reasoning in Tadić is exclusively confined to the classification of armed conflicts under IHL.95 As shown throughout this chapter, the ICJ has referred to some IHL issues in several cases, often reiterating its views in different decisions. There are topics that have been repeated in the case-law so far examined, although they may have not been developed with the same degree of depth. These are: the minimum humanitarian standard referred to by the Court; the relationship between IHL and other branches of international law, such as jus ad bellum and IHRL;96 and the duties of third States regarding IHL violations. In any case, as seen above, the field of belligerent occupation is where the Court has contributed the most to the development of IHL, including a more detailed analysis of the legal issues involved.97 In other cases, as will be explained, it avoided a further development, or missed opportunities to elaborate on rules that could have been easily applicable.

10.3

Judicial Restraint and Selectivity

The abovementioned contributions made by the Court with respect to IHL have been important in the development of this legal regime. Nevertheless, they do not tell the full story about the ICJ’s engagement with this framework. On a number of other occasions, the Court could have, and perhaps should have, taken a different approach, based on the applicable rules of IHL, and nevertheless it chose not to. This section explores three situations in which this was the case: the decision 93

Genocide 2007, above n. 87, paras 403–404. See also Zyberi 2008, p 290. Cassese 2007, p 651; Cannizzaro 2007, pp 43–44, among others. 95 In this regard, Judge Cassese said ‘The contention can respectfully be made that the ICJ missed a good opportunity to elaborate upon and improve the Nicaragua test. The Court, it is submitted, did not do justice to Tadić either. The ICTY had held the view that the “overall control” test was also applicable to state responsibility. To prove the ICTY wrong, the Court should not have simply dismissed that test as solely applicable to the question of classification of armed conflict; it should have proved its alleged inconsistency with state practice and judicial precedent, a judicial exercise it declined to undertake, or at any rate preferred not to engage in … It is warranted to hope that in future the Court, when it returns to this matter, will pay attention to state practice and case law instead of confining itself to uncritically restating its previous views’, in Cassese 2007, pp 667– 668. 96 Greenwood 2015, pp 281–282. 97 Kreß 2013, p 271; Greenwood 2015, p 284. 94

10

Uses of IHL by the International Court of Justice …

281

regarding the interpretation of the Preah Vihear judgment, the already mentioned Legality of the Threat or Use of Nuclear Weapons Advisory Opinion and The Marshall Island cases.

10.3.1 The Request for Interpretation of the Preah Vihear Decision In the Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear98 the Court had to interpret the dispositif rendered in the original 1962 judgment. Back then, the ICJ had found that ‘Thailand [was] under an obligation to withdraw any military or police forces, or other guards or keepers, stationed by her at the [Preah Vihear] Temple, or in its vicinity on Cambodian territory.’99 Cambodia claimed that serious clashes had taken place between its army and the one of Thailand in the surrounding area of the temple after its inscription in the UNESCO World Heritage List.100 It requested the Court to find that, in light of the 1962 judgment, ‘Thailand’s obligation to withdraw its military forces goes beyond a withdrawal from only the precincts of the Temple itself and extends to the area of the Temple in general.’101 The hostilities included the trespass of the border by Thai forces, the use of artillery and casualties inflicted upon the Cambodian armed forces, as detailed in the ICJ’s decision on provisional measures102 and in the separate opinion of Judge Cançado Trindade.103 In this context, it is difficult not to consider that an armed conflict between Cambodia and Thailand104 existed at the relevant time and, hence, that IHL applied. In this context, although the dispute submitted to the ICJ was the interpretation of a decision regarding territorial delimitation, the Court considered the cultural value of the Temple of Preah Vihear/Phra Viharn. Indeed, it rendered an obiter dictum regarding the obligation to cooperate under the 1972 World Heritage Convention (WHC), explaining that:

98

ICJ, Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Judgment, 11 November 2013, I.C.J. Reports 2013, p 281 (Preah Vihear 2013). For a review of the original 1962 ICJ judgment in light of the 2013 decision, see generally Kattan 2015. 99 ICJ, Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Judgment, 15 June 1962, I.C.J. Reports 1962, pp 6, 37. 100 ICJ, Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Provisional Measures, 18 July 2011, I.C. J. Reports 2011, p 537 (Preah Vihear 2011), paras 12, 34. 101 Ibid., para 36. 102 Ibid., para 48. 103 Preah Vihear 2013, above n. 98, paras 19–27. 104 Regarding the definition of International Armed Conflict, see, among others, International Committee of the Red Cross 2008.

282

B. E. Frenkel et al.

[T]he Temple of Preah Vihear is a site of religious and cultural significance for the peoples of the region and is now listed by UNESCO as a world heritage site. In this respect, the Court recalls that under Article 6 of the World Heritage Convention, to which both States are parties, Cambodia and Thailand must co-operate between themselves and with the international community in the protection of the site as a world heritage. In addition, each State is under an obligation not to “take any deliberate measures which might damage directly or indirectly” such heritage.105

The Court, via this obiter dictum, opted to remind the States parties to the dispute about their duty to cooperate under the WHC. However, the Court decided to refrain from any reference to either customary106 or conventional107 IHL rules applicable to the protection of cultural heritage during armed conflict. As Chechi points out: whilst the ICJ’s reference to the international principles contained in the UN Charter was apposite, the exclusive reference to the WHC is puzzling. By taking into account only the WHC, the ICJ obscured the fact that the existing regime for the protection of cultural heritage in wartime was applicable to this case.108

Although it could be argued that the ICJ’s consideration of IHL rules for the protection of cultural property would be an ultra petita decision,109 the same could be said regarding its obiter dictum concerning the WHC, since the request submitted by Cambodia exclusively referred to the ICJ’s 1962 judgment, which had an eminently territorial character. Furthermore, since the temple was affected during armed clashes between the armies of both States, a similar reminder about IHL obligations—customary and/or conventional in nature—would have been reasonable, desirable and expected. As Chechi aptly observes, ‘the argument is that the ICJ—as an agent of legal development and an impartial observer of international practice—was in the position to reaffirm states’ obligation to protect cultural heritage in wartime with a comprehensive obiter dictum.’110

10.3.2 The Nuclear Weapons Advisory Opinion As abovementioned, in the Nuclear Weapons Advisory Opinion the ICJ stressed that certain IHL principles were applicable to nuclear weapons, making an

105

Preah Vihear 2013, above n. 98, para 106 (internal references omitted). See O’Keefe 2006, pp 316–343. 107 Specifically, the Convention for the Protection of Cultural Property in the Event of Armed Conflict, opened for signature 14 May 1954, 249 UNTS 240, entered into forced 7 August 1956, to which both States involved are parties to. 108 Chechi 2015, p 360. 109 See Preah Vihear 2011, above n. 100, para 71; Chechi 2015, pp 359–360. 110 Chechi 2015, p 370. 106

10

Uses of IHL by the International Court of Justice …

283

important contribution to the development of IHL.111 The Court nonetheless took a turn and held the following: ‘[n]evertheless, the Court considers that it does not have sufficient elements to enable it to conclude with certainty that the use of nuclear weapons would necessarily be at variance with the principles and rules of law applicable in armed conflict in any circumstance’.112 In the end, the Court concluded that: …the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law; However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.113

These passages are equivocal114 and the words carefully selected. Kreß notes that ‘one cannot but form the impression that the judges adopted precisely that strategy to which diplomats resort at moments of crisis: the search for constructive ambiguity.’115 However, in a clear effort to eliminate such ambiguity, Judge Weeramantry rendered a dissenting opinion where he detailed the effects of nuclear weapons, concluding that: ‘[j]uxtapose against these consequences the accepted principles of humanitarian law, and the result can scarcely be in doubt.’116 Judge Koroma’s dissenting opinion referred to the dispositif quoted above, affirming that he would concur with it ‘save for the word “generally”,’117 thus stressing that the use of nuclear weapons would breach—in every situation—the above-mentioned principles of IHL. Moreover, he considered that the judgment ‘could be construed as suggesting either that there is a gap, a lacuna, in the existing law’, but found that ‘[a] finding of non liquet is wholly unfounded in the present case.’118 Judge Higgins, more emphatically, stressed that:

111

Nuclear Weapons, above n. 77, paras 85–86. Ibid., para 95. 113 Ibid., dispositif 2.E (emphasis added). 114 Greenwood 2015, p 270. In this regard, Franck points out in precise terms that ‘[t]he result, uncannily, was almost universally welcomed. It tended to be welcomed as Solomonic by Governments with and without nuclear weapons and by the NGOs that had sparked the request. That, in the end, so many contradictory interests seem to have been satisfied, and that all could quote text to back that assertion, may tell us that the opinion lacks the finely tuned specificity that is an important aspect of legal fairness.’ See Franck 1999, p 519. 115 Kreß 2013, p 293. 116 Nuclear Weapons, above n. 77, Dissenting Opinion of Judge Weeramantry, pp 249–250 (brackets omitted). 117 Ibid., Dissenting Opinion of Judge Koroma, p 334. 118 Ibid., Dissenting Opinion of Judge Koroma, p 336. President Bedjaoui fought against such consideration and dedicated a section of his declaration to explain why he considered that there was no non liquet. Nuclear Weapons, above n. 77, Declaration of President Bedjaoui, pp 167–168. 112

284

B. E. Frenkel et al.

[w]hat the Court has done is reach a conclusion of ‘incompatibility in general’ with humanitarian law; and then effectively pronounce a non liquet on whether a use of nuclear weapons in self-defence when the survival of a State is at issue might still be lawful, even were the particular use to be contrary to humanitarian law. Through this formula of non-pronouncement the Court necessarily leaves open the possibility that a use of nuclear weapons contrary to humanitarian law might nonetheless be lawful.119

Other examples of judges who attempted to develop IHL can be found among those in the majority. Judge Schwebel held that the above quoted dispositif was imprecise, but not unreasonable, insofar as it is recognized that, in certain situations, the use of nuclear weapons remained legal since ‘[i]t all depends upon the facts of the case.’120 Along this line, Judge Guillaume considered that the Court should have expressly recognized the legality of the use of nuclear weapons ‘only in certain extreme cases.’121 The remarkable contrast between the majority and the dissenting opinions shows that the Court opted to restrain its position, particularly in light of the question submitted to it by the UN General Assembly.122 Moreover, as Joyner points out, this was: [t]he only occasion in the history of the ICJ jurisprudence in which every one of the 14 judges sitting on the case felt compelled to issue a statement explaining their discomfort, to greater or lesser degrees, with elements of the Court´s opinion. The dissenting opinions are particularly striking because of the intensity of disagreement on issues of law and applications to fact, as well as the exhaustive nature of several of the dissenting opinions in providing alternative, contrasting determination of law from those adopted by the majority.123

It is therefore easy to agree with Joyner when he says that ‘[t]he Court’s advisory opinion … has come to be regarded as one of the most, if not the most, controversial decisions of the International Court of Justice.’124 Interestingly, the ICJ did go further on a question that, in principle, had not been submitted to it: nuclear disarmament. The Court analysed Article VI of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT)125 and concluded that ‘[t]here exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.’126 Judge Guillaume expressed his concern in this regard, opining that the

119

Ibid., Dissenting Opinion of Judge Higgins, para 29. Ibid., Dissenting Opinion of Vice-President Schwebel, pp 99–100. 121 Ibid., Dissenting Opinion of Judge Guillaume, para 7. 122 In this respect, Joyner points out that ‘[t]his refusal to give a legal determination notwithstanding the existence of developed law on point was perceived by a number of dissenting judges as an abrogation by the Court of its fundamental role as the principal judicial organ of the U.N.’. Joyner 2009, pp 213–214. 123 Ibid., p 210. 124 Ibid., pp 209–210. See also Müllerson 1999, p 267. 125 Nuclear Weapons, above n. 77, para 99. 126 Ibid., dispositif 2.F. 120

10

Uses of IHL by the International Court of Justice …

285

Court ‘may have acted ultra petita.’127 It is also worth asking whether the Court intended to affirm that such an obligation only existed for States parties to the NPT or whether the obligation was customary.128 Although the former seems quite obvious, the latter would entail important implications regarding the NPT, such as extending the obligation to negotiate for the reduction of nuclear arsenals to all the States of the international community. This has led Bosch to opine that ‘[b]y addressing the question of nuclear disarmament in the context of the NPT’s Article VI, the Court has rendered an invaluable service to the international community. Although the specific question was not before the Court, all of its judges agreed to take it up’.129

10.3.3 The Marshall Islands Cases In 2014 the Marshall Islands filed before the ICJ a number of applications against States that possess nuclear weapons, including Pakistan, India and the United Kingdom, claiming that they had breached Article VI of the abovementioned NPT, which provides that all the States parties ‘[undertake] to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.’ In these three cases, altogether known as the cases Concerning Negotiations Relating to Cessation of The Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands Cases), the ICJ rendered three separate decisions rejecting the claims on the same legal basis: the lack of a dispute between the parties.130 Before addressing the cases, it is worth recalling the words of Judge Shahabuddeen: The disposition of the Court to follow a single decision is related to the authority of the tribunal by which the decision is rendered. Obviously, and rightly, the Court regards its own authority, and that of its predecessor, as supreme in the field of international

127

Ibid., Dissenting Opinion of Judge Guillaume, para 14. See also Thirlway 1999, p 431. Judge Schwebel expressed his doubts as to whether this obligation could extend to States that were not Parties to the NPT. Ibid., Dissenting Opinion of Vice-President Schwebel, p 107. 129 Bosch 1999, p 388. See also Zyberi 2008, p 307. 130 ICJ, Obligations Concerning Negotiations Relating to Cessation of The Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India), Decision on Jurisdiction and Admissibility, 5 October 2016, General List No. 158 (Marshall Islands v. India); ICJ, Obligations Concerning Negotiations Relating to Cessation of The Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Decision on Jurisdiction and Admissibility, 5 October 2016, General List No. 159 (Marshall Islands v. Pakistan); ICJ, Obligations Concerning Negotiations Relating to Cessation of The Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Decision on Preliminary Objections, 5 October 2016, General List No. 160 (Marshall Islands v. United Kingdom). It is worth mentioning that Marshall Islands v. United Kingdom was decided with the casting vote of the President of the ICJ. 128

286

B. E. Frenkel et al.

adjudication. Several cases may be cited, but often only as further illustrations of the principle decided in a particular case. In the presence of a clear precedent set by itself or its predecessor, the Court will not normally undertake fresh research.131

Indeed, the Court has consistently referred to its previous decisions with certain degree of authority.132 In the Marshall Islands Cases the Court refrained from considering the merits of the case ‘based on the absence of a dispute between the Parties.’133 The Court had consistently resorted to the definition of dispute as stated by the PCIJ in the 1924 Mavrommatis case, where it was conceived as a ‘disagreement on a point of law or fact, a conflict of legal views or of interests between two persons’.134 Although the legal basis to conclude that the ICJ lacked jurisdiction was the same in the three cases, in the Marshall Island v. United Kingdom judgment the ICJ emphasized that: The evidence must show that the parties ‘hold clearly opposite views’ with respect to the issue brought before the Court. As reflected in previous decisions of the Court in which the existence of a dispute was under consideration, a dispute exists when it is demonstrated, on the basis of the evidence, that the respondent was aware, or could not have been unaware, that its views were ‘positively opposed’ by the applicant.135

Such requirement implies a departure from the classic Mavrommatis notion of dispute. This was noted by Judge Crawford, who referred to it as an ‘objective awareness requirement’. He correctly claims that ‘[t]he case law of the Court and its predecessor clearly shows that the threshold for establishing a dispute is a low one’136 and, after reviewing decisions rendered by the ICJ, he persuasively argued that: [i]n none of these cases was there any analysis of whether the Respondent was aware of the Applicant’s claim before it was filed. The rationale behind requiring a legal dispute is to ensure that the Court has something to determine: it protects the Court’s judicial function which, in a contentious case, is to determine such disputes.137

Since ‘objective awareness’ was not previously a requirement, he claimed that the Court ‘effectively transforms a non-formalistic requirement into a formalistic one through the use of the term “awareness”’.138 It is hard not to agree with Judge Crawford. Shahabuddeen 1996, p 11 (emphasis added – footnotes omitted). Lauterpacht 1982, pp 9–11. 133 Marshall Islands v. India, above n. 130, para 56.1; Marshall Islands v. Pakistan, above n. 130, para 56.1; Marshall Islands v. United Kingdom, above n. 130, para 59.1. 134 PCIJ, Mavrommatis Palestine Concession, (Greece v United Kingdom), Judgment, objection to the jurisdiction of the court, Judgment No. 2, 30 August 1924, PCIJ Series A No. 2. See also Uerpmann-Wittzack 2013. 135 Marshall Islands v. United Kingdom, above n. 130, para 41. 136 Ibid., Dissenting Opinion of Judge Crawford, para 3. 137 Ibid. 138 Ibid., Dissenting Opinion of Judge Crawford, para 5. 131 132

10

Uses of IHL by the International Court of Justice …

287

Although the Marshall Island Cases were dismissed at the jurisdictional stage, for the purposes of this chapter, different issues should be highlighted. By placing it next to the Nuclear Weapons Advisory Opinion, it provides us with a piece of the international law we have—to paraphrase Judge Schwebel. But, more importantly, it may show us that there are certain IHL issues for which an international court, such as the ICJ, has no answers. While in the Nuclear Weapons Advisory Opinion the Court struggled and, in the end, opted for a widely criticized non liquet, in the Marshall Islands Cases the ICJ departed from its jurisprudence constante established in 1924 and dismissed a case on the ground that no dispute existed ‘[f]or the first time in almost a century of adjudication of inter-State disputes in the Peace Palace’.139 In other words, considering that the Court decided not to resort to (paraphrasing Judge Shahabuddeen) its clear precedents, as evinced by the individual opinions referred to, it could be argued that the ICJ made an effort to avoid rendering a judgment—on issues closely linked to IHL, such as the content of the disarmament obligations established in the NPT—that, maybe, as an agent for the promotion of international peace and security, it could not deliver. In this sense, Joyner says that ‘[t]he possession by States of [Weapons of Mass Destruction] technologies, in and of itself, has not given rise to legal controversies easily capable of judicial determination’,140 since: [t]hat dispute will be not simply of an academic, or ex post facto character, but will rather be only one facet of a complex political dispute between the parties. This political dispute may, in part due to the presence of this legal dispute, be moving the parties toward contentious relations possibly including military conflict. Thus, what parties to such a dispute of high political sensitivity and moment primarily require is a dispute resolution mechanism which prioritizes mediation and moderation, as opposed to formal determination of legal liability between the parties. Dispute moderation of this kind is indeed better provided by specific treaty organs or by the political bodies of the United Nations, rather than through the adversarial, and necessarily fault-finding, judicial processes of the ICJ.141

10.4

Conclusions: Voices and Silences, from Legal Adjudication to the Pacific Settlement of Disputes and Back

So far, the chapter has reviewed the role of the ICJ in the adjudication of disputes relating to IHL, and in developing this body of law. In neither of these did the ICJ follow a consistent pattern. The Court showed, for example, some law-making activism in Nicaragua, but it soon changed its attitude in the Nuclear Weapons 139 140 141

Ibid., Separate Opinion of Judge Tomka, para 1. Joyner 2009, p 199. Ibid., p 201.

288

B. E. Frenkel et al.

Advisory Opinion.142 The Court was proactive in finding instances to apply IHL in the Legality of the Wall Advisory Opinion, but it was much more cautious when it had to do so in the Request for the Interpretation of the Preah Vihear decision. Further, the Court has oscillated between working with precise doctrines, specifying the contours of the rights and obligations established by them, and with open-ended concepts, leaving it up to itself to determine their meaning and reach in future cases.143 Why is this so? Why has the Court been more lenient to bring up and explore the rules and standards of international humanitarian law in some cases than in others? We believe that a possible explanation may lie in the institutional role of the ICJ as ‘the principal judicial organ of the United Nations’.144 According to the elegant, flexible and concise145 Article 38 of its Statute, the function of the Court is to ‘decide in accordance with international law such disputes as are submitted to it’.146 This phrase, which may seem innocuous at first glance, hides in its wording the two simultaneous and demanding tasks that the international community has confided upon the Court: on the one hand, to be a crucial actor in the pacific settlement of international disputes, and, on the other hand, to perform this task by applying international law.147 The function of the Court as a primary actor in the peaceful settlement of disputes has been acknowledged since its early days. ‘It would appear that the primary purpose of the International Court’, Hersch Lauterpacht wrote in 1958, ‘lies in its function as one of the instruments for securing peace in so far as this aim can be achieved through law’.148 Similarly, Hans Kelsen expressed the view that the role of the international court was to contribute in the efforts ‘to eliminate war, the 142

Kreß 2013, pp 284–285. Bianchi and Naqvi 2011, p 145; Kreß 2013, p 286. 144 Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS XVI, entered into force 24 October 1945 (UN Charter), Article 92; Statute of the International Court of Justice, opened for signature 26 June 1945, 1 UNTS XVI, entered into force 24 October 1945 (ICJ Statute), Article 1. 145 Pellet 2012, p 734. The exact wording of Pellet’s description is that ‘it was certainly not a bad idea, in 1920, to define and link together, in a general provision, the function of the Court, its means and its limits. Article 38 performs this triple duty with elegance, flexibility, and conciseness’. 146 ICJ Statute, above n. 144, Article 38. 147 Mónica Pinto has called these two tasks (i) ‘the adjudication of claims’, i.e. ‘the valuation of the arguments of the parties under the light of the applicable law, in this case, international law’ and (ii) ‘the peaceful settlement of disputes’, i.e. ‘to decide the dispute in such a way as to leave the parties involved more or less satisfied with the result’. For her, ‘[t]he two aspects cannot be conflated, even if both can be useful tools for the purposes of maintaining international peace and security’. Pinto 2007, p 143. 148 Lauterpacht 1958, p. 3. However, for Lauterpacht, the Court was substantially incapacitated in this function given the lack of compulsory jurisdiction. As he wrote earlier, in 1933: ‘The reign of law, represented by the incorporation of obligatory arbitration as a rule of positive international law, is not the only means for securing and preserving peace among nations. Nevertheless, it is an essential condition of peace’. Lauterpacht 1933, p 437. 143

10

Uses of IHL by the International Court of Justice …

289

worst of all social evils’.149 If Lauterpacht and Kelsen were right, then, a faithful adherence to the principles and rules of international law would not be for the Court a goal in itself, but rather an instrument in the pursuit of peace. This idea, however, has been challenged in more recent times. Georges Abi-Saab, for example, writes that, indeed, ‘as “the principal judicial organ of the UN”, the court partakes in world governance, notably through its contribution to the peaceful settlement of international disputes, which is the preventive approach to the pursuit of the first UN purpose, the maintenance of peace and security’.150 However, ‘its first and foremost role is to uphold the global values of [the international community] rather than to act as a mere mediator between two disputing parties’.151 In other words, international law is the priority, although the peaceful settlement of disputes operates in the background. Whatever the actual relation between these two functions, the fact is that the ICJ is very much aware of the international community’s expectations that it will deliver both. The PCIJ hinted its awareness of this fact in 1929, when it stated that ‘the judicial settlement of international disputes, with a view to which the Court has been established, is simply an alternative to the direct and friendly settlement of such disputes between the Parties’, and that, ‘consequently [it] is for the Court to facilitate, so far as is compatible with its Statute, such direct and friendly settlement’.152 The ICJ does not seem to have modified this position. John Collier argues that the Court has, on many occasions, ‘almost abdicated its special function of judicial settlement in substance, though not in form, in favor of one or more of the other methods of [pacific settlement of disputes]’.153 The Court itself has somewhat accepted this idea, although it reversed the order of the premises that the PCIJ had put forward. In the Hostages in Tehran case, the ICJ stated that: It is for the Court, the principal judicial organ of the United Nations, to resolve any legal questions that may be in issue between parties to a dispute; and the resolution of such legal questions by the Court may be an important, and sometimes decisive, factor in promoting the peaceful settlement of the dispute.154

It would be naïve to assume, then, that the development of international law by the ICJ—i.e. its ‘law-making function’—has not been influenced by the tension between these two aspirations. When the Court contributes to the progress of

149

Kelsen 1944, p 16. Abi-Saab 1996, p 14. 151 Ibid., p 7. 152 PCIJ, Case concerning the Free Zones of Upper Savoy and the District of Gex, Order of 19 August 1929, P.C.I.J., Series A, No. 22, p 13. See also ICJ, Case concerning the Frontier Dispute (Burkina Faso v. Republic of Mali), Judgment, 22 December 1986, I.C.J. Reports 1986, p 577, para 46, and ICJ, Case concerning the Passage through the Great Belt (Finland v. Denmark), Request for the indication of provisional measures, 29 July 1991, I.C.J. Reports 1991, p 20. 153 Collier 1996, p 368. 154 ICJ, United States Consular and Diplomatic Staff in Tehran (United States v Iran), Judgment, 24 May 1980, I.C.J. Reports 1980, pp 3, 22. 150

290

B. E. Frenkel et al.

international law, it does not do so in a vacuum. Three contextual factors must be specifically noted when analyzing the contributions that the ICJ has made to the development of international law, and of IHL in particular. The first is the historical origins of the ICJ. There is general agreement in the literature that the creation of the PCIJ first, and its development into the current Court later, is the result of an evolutionary process of the idea that States must resolve their disputes through peaceful means.155 The idea of establishing a permanent court with compulsory jurisdiction was first discussed at the two Hague conferences of 1899 and 1907, which were explicitly aimed at establishing mechanisms for the pacific settlement of disputes.156 The PCIJ and the ICJ were born out of this impulse (after the failed attempt of the Permanent Court of Arbitration) and they were inserted into the structures of the League of Nations and the United Nations respectively with this goal in mind. This was made even more explicit in the case of the ICJ, when—as opposed to the PCIJ—it was explicitly designated a principal organ of the UN, being thus bound by its purposes and principles. Historically, then, the Court seems to be an instrument designed to promote international peace, and international law seems to be merely the tool used to execute this task. This leads to the second factor that must be considered: the legal mandate of the ICJ. As already suggested, Article 38 of the ICJ Statute contains the first indication of a dual goal of the Court, which is accentuated by its designation in Article 7 of the UN Charter as a ‘principal organ’ of the UN. But further, Article 36(3) of the UN Charter gives the court a ‘prominent role’157 in the pacific settlement of disputes, stating that ‘legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court’.158 This is evidently connected with one of the purposes of the UN: ‘to bring about by peaceful means, and in conformity with the principles of justice and international law … settlement of international disputes’.159 Indeed, as Thomas Giegerich notes, ‘having recourse to the ICJ, whose function is to decide disputes in accordance with international law … is the most obvious way to realize that purpose’.160 However, this mandate related to international peace is balanced by the evident judicial nature of the Court.161 Article 38 of the Statute expresses what is obvious, that the function of the Court is ‘to decide in accordance with international law such disputes as are submitted to it’.162 Thus, the ICJ’s legal mandate also includes dual aspirations which may potentially generate tensions.

155 156 157 158 159 160 161 162

Shany 2012, p 246; O’Connell and VanderZee 2013, pp 47–58; Hernández 2014, pp 12–29. See O’Connell and VanderZee 2013, pp 47–58. Tomuschat 2012, p 1081. UN Charter, above n. 144, Article 36(3). UN Charter, above n. 144, Article 1(1). Giegerich 2012, pp 1137–1138. Zyberi 2008, p 336. ICJ Statute, above n. 144, Article 38 (emphasis added).

10

Uses of IHL by the International Court of Justice …

291

The third factor is the institutional context in which the ICJ operates. Firstly, its judges are well aware of the Court’s lack of compulsory jurisdiction and of its dependence on the consent of States to be able to operate.163 This necessarily forces the Court to be mindful of the consequences and the reception of its decisions, and to balance its adherence to the international rules it is supposed to apply against the outcome of the dispute it is deciding.164 Secondly, such wariness has certainly become more acute with the proliferation of international courts and tribunals that took place over the past twenty-five years.165 The world is no longer what it was in 1919 or 1945 when there was no competition: States now have a plethora of options to choose from, and the judges at the ICJ have this in mind—besides their faithfulness to international law—when they decide cases.166 But, finally, the world is also different than it was in 1945 in respect to the ICJ’s public exposure. In the age of the internet, the Court is no longer only accountable to governments, as it may have been in its first years. Increasingly, informed citizens from around the world pay attention to ICJ decisions that affect them, and demand that it satisfies some minimum standards of judicial independence and due process.167 Thus, sticking to international law, rather than being creative to maintain international peace when deciding upon a case, may be a way of avoiding this possible bad publicity, in particular in those cases where public attention focuses on its decisions. In sum, although the ICJ is certainly a key player in the development of international law, its contributions must be assessed bearing in mind the historical, legal and institutional context in which it operates. The Court is not a group of professors interpreting and developing the law in an ivory tower: it is an institutional organ with specific outcome-oriented responsibilities.168 As Hugh Thirlway has 163

Hernández 2014, pp 47–50. Indeed, the Court seems to be aware of its unique ‘judicial function’ pursuant to which the ICJ must privilege certain values and/or consequences before rendering a judgment. This is evident from the Court’s pronouncement in the Northern Cameroons case that it does not consider itself — when invested with jurisdiction—as necessarily bound to render a judgment when the circumstances may demand silence on a particular subject. See ICJ, Northern Cameroons (Cameroon v United Kingdom), Judgment, 2 December 1963, I.C.J. Reports 1963, pp 15, 37: ‘[t]hat the Court may, in an appropriate case, make a declaratory judgment is indisputable. The Court has, however, already indicated that even if, when seised of an Application, the Court finds that it has jurisdiction, it is not obliged to exercise it in all cases. If the Court is satisfied, whatever the nature of the relief claimed, that to adjudicate on the merits of an Application would be inconsistent with its judicial function, it should refuse to do so’. 165 Dupuy and Viñuales 2013. 166 Martti Koskenniemi and Päivi Leino have diagnosed the ‘postmodern anxieties’ suffered by ICJ judges as a result of the proliferation of international tribunals and of the institutional fragmentation of international law. See Koskenniemi and Leino 2002. 167 See e.g. Ulfstein 2009 on the constitutionalization of international law, and the increased due process expectations regarding the decisions of international courts and tribunals. 168 ‘The international law that it applies and interprets is defined by that compromise, and it is for this reason that one cannot properly understand the Court without moving away from the viewpoint that evaluates its work with a pre-conceived notion of its ideal purpose’. Hernández 2014, p 7. 164

292

B. E. Frenkel et al.

acknowledged, ‘[a] dispute is not an opportunity to set the world right on particular issues of international law; the Court’s decisions are of course valued for their contribution to the development of international law; but that is not their primary function’.169 This brings us back to the role of the ICJ in the development of IHL. It is undeniable that the ICJ has made important contributions to the development of IHL, to which this chapter does not, nor could do, justice at all. The law of occupation, the law of non-proliferation, the principle of distinction and the attribution of wrongful acts to States have been sculpted by the decisions of the ICJ. As a non-State actor created to secure peace among States, its contributions to IHL are even more significant. As an organ created to solve disputes among States and to provide advice to the organs of the organization, the role it can play when dealing with IHL (and IHL related) issues is an important one. In a context where IHL is applicable, a ruling by the ICJ on the matter may not be effective in settling the dispute, because the opposing interpretation of the parties to the armed conflict is likely to remain. However, a clarification of the applicable obligations as parties to the GCs may be conducive in helping them to comply with their obligation to ‘respect and ensure respect’, as set in CA1, thereby contributing to a better protection of the victims of an armed conflict. The explanation for the wavering path the Court has chosen to develop IHL, then, may be its awareness of the context in which its decisions are made. This may also be true for its decision to refrain from making a substantive decision in certain cases in which it may have been predictable for it to rely on IHL. The two decisions regarding nuclear weapons are good examples of this: the Court, first, settled on a non liquet (with the casting vote of the president of the Court) with the purpose of avoiding holding that nuclear weapons were illegal. Several years later, the same Court departed from its 100 years old case law to avoid rendering a judgment on the disarmament obligations of nuclear powers under the NPT. It seems that the Court does indeed recognize the existence of limits regarding certain international legal issues. Among other topics, when it comes to nuclear weapons, it seems as if silence is the only response from the Court. In sum, the role that the Court has taken up in the development of international humanitarian law has been one in which it has attempted to strike a balance between its two functions: as an adjudicator of disputes and as an agent for the promotion of international peace and security. It has established a minimum standard that all States should follow based on ‘elementary considerations of humanity’. But it has mostly refrained from identifying and interpreting more specific rules and standards that could help enhance compliance with international law in times of armed conflict. It remains to be seen, in each case, whether the Court will be a vocal defender of the rule of law, or whether it will strategically keep silent in order to peacefully settle the dispute. Its role as a key actor in maintaining international peace and security depends on it being able to strike the right balance.

169

Thirlway 2006, p 23.

10

Uses of IHL by the International Court of Justice …

293

References Abi-Saab G (1996) The International Court as a world court. In: Lowe V, Fitzmaurice M (eds) Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings. Cambridge University Press, Cambridge, pp 3–16. Bianchi A, Naqvi Y (2011) International Humanitarian Law and Terrorism. Hart Publishing, Oxford/Portland. Bosch M (1999) The Non-Proliferation Treaty and Its Future. In: Boisson de Chazournes L, Sands P (eds) The International Court of Justice and Nuclear Weapons. Cambridge University Press, Cambridge, pp 375–389. Cannizzaro E (2007) Interconnecting International Jurisdictions: a contribution from the Genocide decision of the ICJ. European Journal of Legal Studies 1(1):42–57. Cassese A (2007) The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia. European Journal of International Law 18:649–668. Cassese A (2012) The International Court of Justice: It is High Time to Restyle the Respected Old Lady. In: Cassese A (ed) Realizing Utopia – The Future of International Law. Oxford University Press, Oxford, pp 239–249. Chechi A (2015) The 2013 Judgment of the ICJ in the Temple of Preah Vihear Case and the Protection of World Cultural Heritage Sites in Wartime. Asian Journal of International Law 6 (2):353–378. Chetail V (2003) The contribution of the International Court of Justice to international humanitarian law. International Review of the Red Cross 850:235–269. Collier J G (1996) The ICJ and peaceful settlement of disputes. In: Lowe V, Fitzmaurice M (eds) Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings. Cambridge University Press, Cambridge, pp 364–372. D’Amato A (1986) The United States should accept, by a New Declaration, the General Compulsory Jurisdiction of the World Court. American Journal of International Law 80:331– 336. Dinstein Y (2004) The Conduct of Hostilities under the Law of International Armed Conflict. Cambridge University Press, Cambridge. Dupuy P-M, Viñuales J (2013) The Challenge of “Proliferation”: An Anatomy of the Debate. In: Romano C et al. (eds) The Oxford Handbook of International Adjudication. Oxford University Press, Oxford, pp 135–157. Doswald-Beck L (1997) International humanitarian law and the Advisory Opinion of the International Court of Justice on the legality of the threat or use of nuclear weapons. International Review of the Red Cross 316:35–55. Evans G (2004) The Responsibility to Protect: Rethinking Humanitarian Intervention. Proceedings of the Annual Meeting. American Society of International Law 98:78–89. Francioni F, Bakker C (2013) Responsibility to Protect, Humanitarian Intervention and Human Rights: Lesson from Libya to Mali. http://www.transworld-fp7.eu/wp-content/uploads/2013/ 04/TW_WP_15.pdf. (link no longer available) Accessed 29 June 2017. Franck T (1999) Fairness and the General Assembly Advisory Opinion International Law. In: Boisson de Chazournes L, Sands P (eds) The International Court of Justice and Nuclear Weapons. Cambridge University Press, Cambridge, pp 511–519. Galeano E (2012) Los días de Galeano, entrevista 1. http://server.encuentro.gov.ar/programas/ serie/8174/5752. Accessed 22 November 2018. Gibney M (2007) Genocide and State Responsibility. Human Rights Law Review 7:760–773. Giegerich T (2012) Pacific Settlement of Disputes, Article 36. In: Simma B et al. (eds) The Charter of the United Nations: A Commentary, 3rd edn. Oxford University Press, Oxford, pp 1119– 1145. Greenwood C (1997) The Advisory Opinion on nuclear weapons and the contribution of the International Court of Justice to international humanitarian law. International Review of the Red Cross 316:56–64.

294

B. E. Frenkel et al.

Greenwood C (1999) Jus Ad Bellum and Jus In Bello in the Nuclear Weapons Advisory Opinion. In: Boisson De Chazournes L, Sands P (eds) International Law, the International Court of Justice and Nuclear Weapons. Cambridge University Press, Cambridge, pp 247–266. Greenwood C (2015) The International Court of Justice and International Humanitarian Law. In: Jalloh C, Elias O (eds) Shielding Humanity. Brill/Nijhoff, Boston/Leiden, pp 263–288. Henckaerts J–M, Doswald–Beck L (2005) Customary International Humanitarian Law. Cambridge University Press, Cambridge. Hernández G (2014) The International Court of Justice and the Judicial Function. Oxford University Press, Oxford. International Committee of the Red Cross (2008) How is the Term ‘Armed Conflict’ Defined in International Humanitarian Law? https://www.icrc.org/eng/assets/files/other/opinion-paperarmed-conflict.pdf. Accessed 15 August 2018. Jessup P (1988) The Use of International Law. Hein & Co. (Michigan Law), Buffalo. Johnson J T (2015) Humanitarian Intervention, the Responsibility to Protect, and Sovereignty: Historical and Moral Reflections. Michigan State International Law Review 23.3:609–634. Joyner D H (2009) International Law and the proliferation of Weapons of Mass Destruction. Oxford University Press, New York. Kattan V (2015) The Ghosts of the Temple of Preah Vihear/Phra Viharn in the 2013 Judgment. Asian Journal of International Law 5(1):16–25. Kelsen H (1944) Peace Through Law. University of North Carolina Press, Chapel Hill. Koskenniemi M, Leino P (2002) Fragmentation of international law? Postmodern anxieties. Leiden Journal of International Law 15(3):553–579. Kreß C (2013) The International Court of Justice and the Law of Armed Conflicts. In: Tams C, Sloane J (eds) The Development of International Law by the International Court of Justice. Oxford University Press, Oxford, pp 263–298. Lauterpacht H (1933) The Function of Law in the International Community. Clarendon Press, Oxford. Lauterpacht H (1958) The Development of International Law by the International Court. Stevens and Sons Ltd, London. Lauterpacht H (1982) The Development of International Law by the International Court. Grotius Publications, Cambridge. Mollel A (2007) Judicial Settlement of Armed Conflicts in International Law: Reflecting the 2005 International Court of Justice Decision in the Democratic Republic of Congo. Nordic Journal of International Law 76:407–434. Müllerson R (1999) On the relationship between Jus ad bellum and Jus in bello in the General Assembly Advisory Opinion. In: Boisson de Chazournes L, Sands P (eds) International Law, the International Court of Justice and Nuclear Weapons. Cambridge University Press, Cambridge. O’Connell M E, VanderZee L (2013) The History of International Adjudication. In: Romano C et al. (eds) The Oxford Handbook of International Adjudication. Oxford University Press, Oxford, pp 40–61. O’Keefe R (2006) The Protection of Cultural Property in Armed Conflict. Cambridge University Press, Cambridge. Pellet A (2012) Article 38. In: Zimmermann A et al. (eds) The Statute of the International Court of Justice: A Commentary, 2nd edn. Oxford University Press, Oxford, pp 731–870. Pinto M (2007) L’Emploi de la force dans la jurisprudence des tribunaux internationaux. Collected Courses of the Hague Academy of International Law 331:9–162. Raimondo F (2007) The International Court of Justice as a Guardian of the Unity of Humanitarian Law. Leiden Journal of International Law 20:593–611. Schlütter B (2010) Developments in Customary International Law. Theory and Practice of the International Court of Justice and the International Ad Hoc Tribunals for Rwanda and Yugoslavia. Martinus Nijhoff Publishers, Leiden/Boston. Shahabuddeen M (1996) Precedent in the World Court. Cambridge University Press, Cambridge.

10

Uses of IHL by the International Court of Justice …

295

Shany Y (2012). Assessing the Effectiveness of International Courts: A Goal-Based Approach. American Journal of International Law 106:225–270. Sofaer A (2004) The International Court of Justice and Armed Conflict. Northwestern Journal of International Human Rights 1. https://scholarlycommons.law.northwestern.edu/njihr/vol1/iss1/4. Accessed 2 May 2019. Thirlway H (1999) The Nuclear Weapons Advisory Opinion: The Declarations and Separate and Dissenting Opinions. In: Boisson De Chazournes L, Sands P (eds) International Law, the International Court of Justice and Nuclear Weapons. Cambridge University Press, Cambridge, pp 390–434. Thirlway H (2006) The Drafting of ICJ Decisions: Some Personal Recollections and Observations. Chinese Journal of International Law 5:15–28. Tomka P (2013) Custom and the International Court of Justice. International Courts and Tribunals 12:195–216. Tomuschat C (2012) Pacific Settlement of Disputes, Article 33. In: Simma B et al. (eds) The Charter of the United Nations: A Commentary, 3rd edn. Oxford University Press, Oxford, pp 1069–1085. Uerpmann-Wittzack R (2013) Mavrommatis Concessions Cases. Max Planck Encyclopedia of Public International Law. http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law9780199231690-e168. Accessed 2 May 2019. Ulfstein G (2009) The International Judiciary. In: Klabbers J et al. (eds) The Constitutionalization of International Law. Oxford University Press, Oxford, pp 126–152. United Nations General Assembly (2003) Resolution on Illegal Israeli actions in Occupied East Jerusalem and the rest of the Occupied Palestinian Territory. UN Doc ES-10/14. Weeramantry CG (2003) International Humanitarian Law. Sri Lanka Journal of International Law 15:3–6. Zyberi G (2008) The Humanitarian Face of the International Court of Justice. Its Contribution to Interpreting and Developing International Human Rights and Humanitarian Law Rules and Principles. Intersentia, Antwerp/Oxford/Portland. Zyberi G (2011) The International Court of Justice and applied forms of reparation for international human rights and humanitarian law violations. Utrecht Law Review 7:204–215.

Brian E. Frenkel is a lawyer (University of Buenos Aires, School of Law) and LL.M. from the Geneva Academy of International Humanitarian Law and Human Rights (cum laude). He is a member of the Observatory of International Humanitarian Law of the University of Buenos Aires, School of Law. He is currently the Human Rights and Humanitarian Affairs Adviser of the Permanent Mission of Israel to the UN in Geneva. Sebastián A. Green Martínez is a lawyer and Master in International Affairs (University of Buenos Aires, School of Law) and LL.M. in International and Comparative Law (George Washington University Law School). He is a Faculty Member in Public International Law (on leave) at the University of Buenos Aires and Associate at Uría Menéndez, Madrid Office. Nahuel Maisley is a lawyer (University of Buenos Aires, School of Law) and LL.M. in International Legal Studies (Hauser Global Scholar, NYU School of Law). He is currently a Lecturer in Public International Law at the University of Buenos Aires and a Post-Doctoral Fellow at the National Research Council (CONICET). Any errors in this chapter are our own responsibility. Any opinions, findings and conclusions expressed in this chapter are our own and do not necessarily reflect those of the institutions we belong to.

Chapter 11

The Development of IHL by Human Rights Bodies Gerd Oberleitner

Contents 11.1 Introduction...................................................................................................................... 298 11.2 United Nations................................................................................................................. 298 11.2.1 The UN Human Rights Council ........................................................................ 298 11.2.2 The UN Human Rights Treaty Bodies .............................................................. 302 11.3 Inter-American Commission and Court of Human Rights............................................. 305 11.4 European Court of Human Rights .................................................................................. 309 11.5 African Commission on Human and Peoples’ Rights.................................................... 312 11.6 Human Rights Bodies and the Future of Humanitarian Law ........................................ 313 References .................................................................................................................................. 315

Abstract International human rights bodies have repeatedly been confronted with situations of armed conflict and consequently also with the potential complementary application of human rights and international humanitarian law (IHL) in such situations. Within their human rights-related mandates, the United Nations (UN) Human Rights Council and its special procedures, UN human rights treaty bodies, the European Court of Human Rights, the Inter-American Commission and Court of Human Rights and the African Commission on Human and Peoples’ Rights have developed a limited practice in dealing with IHL. In any case, these bodies have displayed different attitudes towards IHL and have contributed in different ways to understanding the links between human rights and IHL. Their practice can be seen as a non-State perspective on IHL with the potential to inform the law’s further development. This chapter traces how, on what basis and with which consequences, international human rights bodies contribute to the development of IHL.

G. Oberleitner (&) Institute of International Law and International Relations, University of Graz, Universitätstrasse 15, 8010 Graz, Austria e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 E. Heffes et al. (eds.), International Humanitarian Law and Non-State Actors, https://doi.org/10.1007/978-94-6265-339-9_11

297

298

G. Oberleitner







Keywords International Humanitarian Law Human Rights United Nations Human Rights Council Human Rights Treaty Bodies European Court of Human Rights Inter-American Commission and Court of Human Rights African Commission on Human and Peoples’ Rights




11.1










Introduction

International and regional human rights bodies have repeatedly been confronted with situations of armed conflict and, consequently, also with the potential of the complementary application of international human rights law (IHRL) and international humanitarian law (IHL). Even though the mandates of these bodies – the United Nations (UN) Human Rights Council and its special procedures, UN treaty bodies, the Inter-American Commission and Court of Human Rights, the European Court of Human Rights and the African Commission on Human and Peoples’ Rights – are usually restricted to human rights, they have on various occasions referred to IHL. In doing so, they have the potential not only to clarify the interplay between IHRL and IHL but also to contribute to the further development of the latter. Given that these human rights bodies are composed of judges or independent experts or may otherwise rely on independent expertise, their practice represents a non-State perspective on IHL and its development. At the same time, their case law (as resolutions, concluding observations or judgements) is not uniform when it comes to the applicaton of IHL. Given that human rights bodies increasingly step in to substitute non-existing or dysfunctional means of enforcing IHL, it seems all the more pertinent to understand to what extent these institutions make use of IHL and in turn shape the law’s development. This chapter traces the way in which the main international and regional human rights bodies have engaged with IHL and analyses the potential contribution which they have made and can possibly make to the further development of IHL.

11.2

United Nations

11.2.1 The UN Human Rights Council The mandate of the UN Human Rights Council (Council) includes the protection of human rights ‘in situations of violations of human rights, including gross and systematic violations’,1 upon which it can make recommendations to States. The Council is also meant to respond promptly to human rights emergencies and serve

1

UN General Assembly 2006, para 3.

11

The Development of IHL by Human Rights Bodies

299

as a forum for dialogue on thematic issues on human rights generally.2 This mandate is broad enough to cover situations of armed conflicts, particularly when they involve grave and serious human rights violations. Consequently, the Council has regularly considered the protection of human rights of civilians in armed conflict as falling within its remit and has argued that human rights law applies in armed conflict and that human rights and IHL are complementary.3 In this respect, the Council usually monitors and discusses human rights in armed conflict in its regular and special sessions, through its country and thematic special procedures and in the Universal Periodic Review (UPR).4 When it comes to IHL, it should be noted that already the Council’s predecessor, the UN Commission on Human Rights (UN Commission), had regularly treated IHL as applicable alongside IHRL. The Commission referred to IHL in many of its country-specific resolutions such as on Sri Lanka,5 the former Yugoslavia,6 Rwanda7 and the Middle East.8 It was regularly supported in this approach by its (then) parent body, the UN Economic and Social Council.9 General Assembly resolution 60/251 of 2006, the founding document of the Council, however, does not mention IHL nor was the question of its applicability discussed during the Council’s creation.10 Yet, just like the UN Commission, the Council seems at ease when invoking IHL in light of its political rather than strictly legal mandate. Given that it is composed of governmental representatives and guided by its broadly worded mandate, it can indeed be said that the Council acts along political lines in light of international legal standards.11 Not only is the Council unconcerned with the details of international human rights treaty law, it also usually invokes IHL in the most general terms as references to the four Geneva Conventions of 1949 and the Additional Protocols of 1977 or even simply as humanitarian principles. In the framework of the Council’s (and before that, the UN Commission’s) resolutions, reference to IHL can thus be viewed as more of an appeal to basic humanitarian behavior than a legal statement.12 The pronouncements of the Council’s special procedures – Special Rapporteurs, Independent Experts, Working Groups and Special Representatives of the UN

2

Ibid., para 5(b) and (f). See, for example, UN Human Rights Council 2008a, para 25; and UN Human Rights Council 2008c. 4 See in greater detail Ramcharan 2011, pp 15–105. 5 See UN Commission on Human Rights 1987, para 1. 6 See UN Commission on Human Rights 1992, para 1. 7 See UN Commission on Human Rights 1994, para 1. 8 See UN Commission on Human Rights 1996, para 3. See on these and other situations also UN Office of the High Commissioner for Human Rights 2011, p 103. 9 See Alston, Morgan-Foster and Abresch 2008, pp 198–199. 10 Ibid. 11 Alston 1992, p 193. 12 van Boven 1991, p 503. 3

300

G. Oberleitner

Secretary General – are perhaps more instructive as examples of non-State practice on IHL. The mandate holders of some of these procedures considered situations of armed conflict, occupation and violence on different occasions. Country-specific Council procedures were faced with such situations since the 1960s. When an Ad Hoc Working Group of Experts was mandated in 1967 to investigate policies and practices in violation of human rights in South Africa and Namibia, the group prepared a list of applicable standards against which measures taken by South Africa should be assessed. This list included relevant provisions of the four Geneva Conventions of 1949.13 Since the 1980s, Special Rapporteurs have regularly invoked IHL alongside human rights law in situations such as Afghanistan, El Salvador, Rwanda, Burundi and the Democratic Republic of the Congo.14 Thematic special procedures have also repeatedly relied on IHL. Special Rapporteurs on topics such as the right to housing, the independence of judges and lawyers or the sale of children and child prostitution have issued thematic reports with references to IHL.15 The Special Rapporteur on the promotion and protection of human rights while countering terrorism has argued that analysing the typology of a given situation of violence under IHL is actually a precondition for fulfilling his mandate and went on to find that, without any doubt, violations of IHL to fell within this mandate.16 The Rapporteur also argued that it is precisely the very nature of non-international armed conflicts (NIACs) which makes the complementary application of human rights and IHL a necessity.17 Special Rapporteur Philip Alston, who held the mandate on extrajudicial killings between 2004 and 2010, was particularly adamant that IHL ‘falls squarely within [the Rapporteur’s] mandate.’18 He argued that Council-mandated special procedures may resort to any source of law to decide on a violation of human rights law, that the mandates of thematic special procedures need to be understood dynamically in relation to the multifaceted problems they are supposed to study and that reliance on IHL has always been endorsed by the Council.19

13

Ibid., p 499; and UN Commission on Human Rights 1967, p 76. See Ricca 2002, pp 169–172. 15 See, for example, UN Human Rights Council 2001, para 73; UN Human Rights Council 2004a, paras 18 and 92; UN Human Rights Council 2007, paras 4 and 47–57; UN Human Rights Council 2006a, paras 14–15; and UN Human Rights Council 2006b, paras 61–64. 16 See UN Human Rights Council 2010a, para 22. 17 Ibid., paras 15–17. 18 UN Human Rights Council 2004b, para 45. 19 See Alston, Morgan-Foster and Abresch 2008, pp 199–200. For other examples of Council special procedures’ engagement with IHL see Kälin 2013, pp 452–454. 14

11

The Development of IHL by Human Rights Bodies

301

When the Council was created in 2006, it was also given a new competence to hold special sessions on emergency situations. The vast majority of the 26 special sessions held so far dealt with situations of armed conflict or violence and many of them involved questions of IHL.20 Often, such sessions led to the creation of fact-finding missions or commissions of inquiry tasked with establishing facts and providing recommendations to the Council. Thirteen such commissions and missions have been created so far (on the situation in the Palestinian occupied territories, Lebanon, Darfur, the Democratic Republic of the Congo, Libya, Côte d’Ivoire and Syria).21 These missions and commissions routinely refer to IHL in their reports.22 The International Fact-Finding Mission on Israeli Settlements in the Occupied Palestinian Territory concluded in its report to the 22nd session of the Council in 2013 that Israel was in violation of Article 49 of Geneva Convention IV regarding the transfer of civilian population in occupied territory.23 More recently, the Independent International Commission of Inquiry on the Syrian Arab Republic has extensively referred to violations of IHL, for example in its report on the battle for control over the city of Aleppo.24 General Assembly resolution 60/251 also entrusted the Council with carrying out the Universal Periodic Review (UPR) to regularly assess the human rights situation in every UN member state. In this peer review process, states are expected to comment on each other’s performance. From the beginning, the scope of human rights obligations and commitments upon which such an assessment should be made was subjected to debate. It was finally decided that not only the UN Charter, the Universal Declaration of Human Rights, human rights instruments to which a State is party and voluntary pledges and commitments made by States should be the basis for the review, but that in addition ‘the review shall take into account applicable international humanitarian law’.25 While this wording is vague as to the exact scope of states’ obligations and the rationale for including IHL in this review procedure was never disclosed, the provision does effectively cover the whole of the (universally ratified) Geneva Conventions as well as applicable customary IHL. In the UPR, the Council can thus express general concerns for humanitarian principles as well as denounce specific breaches of the Geneva Conventions and Additional Protocols.

20

Special sessions 1, 3, 6, 9, and 12 and 21 were on the Occupied Palestinian Territory, session 2 on the Lebanon conflict, session 4 on Darfur, session 8 on the Democratic Republic of the Congo, session 11 on Sri Lanka, session 14 on Côte d’Ivoire, session 15 on Libya, sessions 16 to 19 and 25 on Syria, session 20 on the Central African Republic, session 22 on Iraq, session 12 on the terrorist group Boko Haram, session 24 on Burundi, and session 26 on South Sudan, see UN Human Rights Council. Sessions. 21 See in greater detail Oberleitner 2015, pp 253–255. 22 See UN Office of the High Commissioner for Human Rights 2001, p 115. 23 See UN Human Rights Council 2013, para 16. 24 See UN Human Rights Council 2017. 25 UN Human Rights Council 2006c, annex.

302

G. Oberleitner

An analysis of the first years of the UPR, however, does not reveal any in-depth engagement with humanitarian norms or any consistent practice in this regard.26 States usually express concerns for humanitarian principles,27 make general remarks on the complementary nature of human rights and humanitarian law28 or comment on training in humanitarian law.29 As an example of such general statements made in the peer review process, Mexico asked Pakistan in 2008 to ‘strictly adhere to international human rights and international humanitarian law and international refugee law in its fight against terrorism’.30 Only occasionally were the Geneva Conventions and Additional Protocols referred to at all. Cuba, Mexico and Malaysia, for example, invoked the Geneva Conventions and Additional Protocols in general terms when commenting on Israel.31 This is in line with the predominantly general recommendations made within the UPR process and indicates that, as it stands, this mechanism is not a means to effectively scrutinize specific obligations arising from IHL.

11.2.2 The UN Human Rights Treaty Bodies Given their nature as expert bodies set up under human rights treaties rather than political bodies, the nine UN human rights treaty bodies work strictly within the remit of their respective treaty.32 They monitor human rights primarily through the

26

See Kälin 2013, pp 454–455. UN Human Rights Council 2011a, para 62. 28 See UN Human Rights Council 2011b, para 53. 29 See UN Human Rights Council 2009b, paras 17, 40 and 58 and 59. 30 See UN Human Rights Council 2008b, Recommendation 25. 31 See UN Human Rights Council 2010b, paras 57, 74 and 81. 32 These include the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171, entered into force 23 March 1976 (ICCPR), International Covenant on Economic, Social and Cultural Rights, opened for signature 19 December 1966, 993 UNTS 3, entered into force 3 January 1976 (ICESCR); Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 7 March 1966, 660 UNTS 195, entered into force 4 January 1969; Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 1 March 1980, 1249 UNTS 13, entered into force 3 September 1981 (CEDAW); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, opened for signature 10 December 1984, 1465 UNTS 85, entered into force 26 June 1987 (CAT); Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3, entered into force 2 September 1990 (CRC); Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, opened to signature 18 December 1990, 2220 UNTS 3, entered into force 1 July 2003; Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3, entered into force 3 May 2008 (CRPD); and the International Convention for the Protection of All Persons from Enforced Disappearance, opened for signature 6 February 2007, 2716 UNTS 3, entered into force 23 December 2010. 27

11

The Development of IHL by Human Rights Bodies

303

examination of periodic state reports. In addition, individual complaint procedures are provided for in Optional Protocols to five of them33 while the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (1984) is supplemented by an inspection system.34 The Committee on the Rights of the Child finds itself in a particular position given that Article 38(1) of the Convention on the Rights of the Child (CRC) (1989) obliges State parties to undertake to respect and ensure respect for binding IHL rules applicable to children in armed conflicts. Article 38(2)–(4) also contain provisions on the conscription or recruitment of child soldiers and their participation in conflict with direct reference to IHL.35 It has rightly been argued that this has allowed the Committee, albeit to a limited extent, to contribute to ‘shaping and solidifying’36 IHL norms. The Committee referred to IHL in several of its General Comments. In General Comment No. 1 – on the aims of education – it emphasized the importance of education in humanitarian law.37 In General Comment No. 6 – on unaccompanied and separated children outside their country of origin – it stipulated that child soldiers should not be interned and that, should this still happen, they must benefit from international human rights and humanitarian law.38 In General Comment No. 11, the Committee found States to be under the obligation to ensure respect for IHL with regard to indigenous children in armed conflict.39 In its Concluding Observations on State reports, the Committee repeatedly found violations of IHL in conjunction with Article 38 of the CRC.40 Commenting on Uganda, for example, the Committee expressed concern ‘that the rules of international humanitarian law applicable to children in armed conflict are being violated in the northern part of the country, in contradiction to the provisions of Article 38 of the Convention.’41 With regard to Israel, the Committee referred to the fourth Geneva Convention of 1949 and invoked the rules of distinction between civilians and

33

Namely, the optional protocols to the ICCPR, ICESCR, CEDAW, CRC, and CRPD. As contained in the Optional Protocol to the CAT (2002). 35 Article 38(2) CRC: ‘States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities. (3) States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavour to give priority to those who are oldest. (4) In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict.’ 36 Weissbrodt, Hansen and Nesbitt 2011, p 140. 37 UN Committee on the Rights of the Child 2001, para 16. 38 UN Committee on the Rights of the Child 2005, paras 56–57. 39 UN Committee on the Rights of the Child 2009, para 66. 40 On Bhutan, Burundi, Democratic Republic of the Congo, Ethiopia, India (twice), Indonesia, Iraq, Israel, Burma/Myanmar, Russian Federation, Sudan, Tajikistan, Uganda and Uzbekistan, see Weissbrodt, Hansen and Nesbitt 2011, p 131. 41 UN Committee on the Rights of the Child 1997, para 34. 34

304

G. Oberleitner

combatants and on the proportionality of attacks which cause excessive damage to civilians.42 In comparison, other treaty bodies have been reluctant to invoke IHL. The Human Rights Committee – acting in accordance with the mandate established by the International Covenant on Civil and Political Rights (1966) – made it clear in its General Comment No. 31, that is sees IHRL as continuing to apply in armed conflicts and it argued that ‘[w]hile, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive.’43 In General Comment No. 29, the Committee pointed out that, even though its mandate pertains only to the Covenant, it has the competence to take into account other international obligations of State parties when considering derogations from treaty provisions, which arguably includes IHL.44 Nonetheless, in its concluding observations on State reports, the Committee refrained by and large from directly applying IHL.45 With regard to Israel’s periodic report in 2003, for example, the Committee noted (on the situation in the West Bank and Gaza) that the application of IHL during armed conflict must not preclude Covenant’s application.46 In dealing with individual communications, the Committee has also not dealt with IHL.47 In its General Comment No. 36, the Committee has repeated its view that IHL and IHRL are complementary and has clearly indicated that violations of core provisions of IHL are also violations of the right to life under the Covenant.48 Other treaty bodies have been less forthcoming and systematic in their approach to humanitarian law.49 The Committee on Economic, Social and Cultural Rights has occasionally claimed that socio-economic and cultural rights need to be respected in armed conflicts because they are part of IHL. In its Concluding Observations on Israel, the Committee argued that ‘even in a situation of armed conflict, fundamental human rights must be respected and … basic economic, social and cultural rights as part of the minimum standards of human rights are guaranteed under customary international law and are also prescribed by international humanitarian law’.50 The Committee also spoke out on the protection of health and water services in times of armed conflict.51 Likewise, the Committee on the

42

UN Committee on the Rights of the Child 2002, para 51. UN Human Rights Committee 2004, para 11. 44 UN Human Rights Committee 2001, para 10. 45 It did so, for example, on Sudan in 1997, on Azerbaijan in 1994 and on Sri Lanka in 1995, see Weissbrodt 2010a, pp 1222–1223. 46 See Human Rights Committee 2003, para 11. 47 See Weissbrodt (2010a), p 1203. 48 See UN Human Rights Committee 2018, para 64. 49 UN Human Rights Council 2010a, para 38. 50 UN Committee on Economic, Social and Cultural Rights 2004, para 31. 51 See Kälin 2013, p 445. 43

11

The Development of IHL by Human Rights Bodies

305

Elimination of Racial Discrimination called upon States to respect the principles of humanitarian law.52 In its General Recommendation No. 30, the Committee stated that non-citizens are protected by IHRL, IHL and refugee law.53 In its urgent procedure, which allows the Committee to respond swiftly to individual cases and ask for interim measures to be taken by states to protect victims of human rights violations, it also took into account humanitarian obligations in general terms.54 The Committee on the Elimination of all Forms of Violence against Women used its General Comment No. 19 on violence against women to remark in passing on the importance of humanitarian law.55 Such reluctance may be attributed to concerns about overstepping the mandate or the lack of humanitarian law expertise in some treaty bodies. It may also reflect an unwillingness to go into categorising types of armed violence along the lines of humanitarian law.56 In any case, the contribution of UN treaty bodies to the development of IHL is limited.

11.3

Inter-American Commission and Court of Human Rights

The Inter-American Commission on Human Rights has gone further than any other human rights body in addressing violations of IHL in situations of armed conflict. When the Commission was confronted with alleged violations of IHL in the case of Disabled Peoples’ International v. United States in 1987, it examined the petition of victims of an aerial bomb attack by the United States (US) in Grenada, which had left 16 inmates of a psychiatric hospital dead. Despite objections by the US that the Commission is ‘not an appropriate organ to apply the Fourth Geneva Convention to the United States’,57 the petition was deemed admissible but, in the end, did not proceed to the merits. Subsequently, the cases of Arturo Ribón Avilán v. Colombia,58 Hugo Bustios Saavedra v. Peru59 and Juan Carlos Abella v. Argentina

52

See in greater detail Weissbrodt 2010b, pp 343–344 and 347. UN Committee on the Elimination of Racial Discrimination 2004, para 20. 54 See Weissbrodt 2010b, pp 352–355. 55 See UN Committee on the Elimination of all Forms of Discrimination against Women 1992, para 7(c). 56 See Weissbrodt, Hansen and Nesbitt 2011, pp 138–139. 57 IACHR, Disabled Peoples’ International v. United States, Decision as to the Admissibility, 22 September 1987, Case No. 9213, OAS Doc. OEA/Ser.L/V/II.71, Doc. 9 rev. 1, Chapter IV. B., para 3. 58 IACHR, Arturo Ribón Avilán and ten others (‘The Milk’) v. Colombia, 30 September 1997, Report No. 26/97, Case 11.142, OAS Doc. OEA/Ser.L/V/II.98, Doc. 6 rev. (Avilán). 59 IACHR, Hugo Bustios Saavedra v. Peru, 16 October 1997, Report No. 38/97, Case No. 10.548, OAS Doc. OEA/Ser.L/V/II.98 Doc. 6 rev. 53

306

G. Oberleitner

(also known as the ‘La Tablada’ case)60 in 1998 allowed the Commission to formulate what remain arguably the most far-reaching consideration of IHL by a human rights body. The La Tablada case concerned an attack carried out in 1989 by 42 members of the armed group Movimiento Todos por la Patria against a military barracks in La Tablada, Buenos Aires province, resulting in a 30 hours-long exchange of fire with Argentine armed forces. Out of a total of approximately 3500 persons involved in the incident, 29 attackers and several State agents were killed.61 Argentina qualified its own conduct as a military operation but rejected the applicability of IHL to this situation, while the petitioners claimed that Argentina had violated the American Convention on Human Rights (1969) (American Convention) as well as IHL.62 The Commission analysed the situation not only from the perspective of the American Convention but also from the point of view of IHL. It found the existence of an internal armed conflict under humanitarian law to which human rights and IHL applied in a complementary way. Further, it found it necessary to apply standards and rules of IHL as a source of authoritative guidance for deciding on possible violations of the American Convention in such combat situations.63 The Commission found that its competence to apply IHL could be derived from various articles of the American Convention and, in particular, from the necessity to use those norms which are most favourable to the individual and secure the highest possible standard of protection.64 The Commission held that: where there are differences between legal standards governing the same or comparable rights in the American Convention and a humanitarian law instrument, the Commission is duty bound to give legal effect to the provision(s) of that treaty with the higher standard(s) applicable to the right(s) or freedom(s) in question. If that higher standard is a rule of humanitarian law, the Commission should apply it.65

The Commission supported this argument with the view that IHL could in any case be applied directly where it is identical with international human rights law.66 In the Commission’s view, the American Convention on Human Rights and the Geneva Conventions of 1949 share a common core of non-derogable rights the mutual goal of which is to protect the physical integrity and dignity inherent in the

60 IACHR 1998, Juan Carlos Abella v. Argentina, 18 November 1997, Report No. 55/97, Case No. 11.137, OAS Doc. OEA/Ser.L/V/II.98 Doc. 6 rev. (Abella). 61 Ibid., paras 7–37. 62 Ibid., para 147. 63 Ibid., para 161. 64 The Commission referred, in particular, to Article 25 on the right to have an effective judicial remedy, Article 27 on derogation, Article 29 on interpretative principles and Article 64 on the competence of the Inter-American Court of Human Rights to advise on the use of treaties other than the American Convention on Human Rights (1969). 65 Abella, above n. 60, para 165. 66 Ibid., paras 158 and 165.

11

The Development of IHL by Human Rights Bodies

307

human being.67 In Avilán v. Colombia, in which the Commission considered the killing of members of the M-19 guerilla movement by the Colombia army, the Commission argued again that it is competent to directly apply norms of IHL or use it for interpretative purposes.68 It also resorted to an earlier Advisory Opinion of the Inter-American Court of Human Rights in the Other Treaties case, where the Court had already accepted that, in principle, the Commission may refer to treaties other than the American Convention regardless of their bilateral or multilateral character or whether they had been adopted within the framework or under the auspices of the Inter-American system.69 The Commission repeated this views in subsequent cases among which the case of Coard et al. v. United States of 1999 stands out because it dealt with an international armed conflict (IAC) rather than a NIAC. The case involved 17 individuals who were detained and allegedly mistreated by US armed forces during the 1983 invasion of Grenada. While the petitioners invoked only the American Convention, the US referred to its overriding obligations under the law of armed conflict and denied the competence of the Inter-American Commission to deal with IHL.70 The Commission stood by its position that it was competent to review IHL as much as human rights law and consequently examined the respective norms on detention in Geneva Conventions III and IV, including the right to appeal in Article 78 of Geneva Convention IV.71 However, it found that only violations of the American Declaration of the Rights and Duties of Man (1948) (American Declaration) had occurred.72 As the United States are not party to the American Convention, this was made possible by the Commission’s competence to review states in the region on the basis of the Declaration. In 2002, when examining the situation of detainees held by the US in Guantanamo Bay, Cuba, the Commission put forward another argument to link IHL and human rights law by invoking the Martens Clause so as to ensure that no one is left beyond the reach of the law. This allowed the Commission to find that, on the basis of Article 5 of Geneva Convention III as well as Article XVIII of the American Declaration, the US were under the obligation to

67 See IACHR, Franklin Guillermo Aisalle Molina, Ecuador-Colombia, 21 October 2010, Inter-state petition IP-02, Report No. 112/10, OEA/Ser.L/V/II.140, para 117. 68 Avilán, above n. 58, para 174. 69 IACtHR, ‘Other Treaties’ Subject to the Consultative Jurisdiction of the Court (Article 64 American Convention on Human Rights), Advisory Opinion, 24 September 1982, OC-1/82, Ser. A, No. 1, para 32: ‘the broadest interpretation would include within the Court’s advisory jurisdiction any treaty concerning the protection of human rights in which one or more American States are Parties’. 70 IACHR, Bernard Coard and Others v. United States, 29 September 1999, Report No. 109/99, Case No. 10.951, OAS Doc. OEA/Ser.L/V/II.106 Doc. 3 rev, paras 21 and 35. 71 Ibid., para 55. 72 Ibid., para 61.

308

G. Oberleitner

provide a competent tribunal to decide the legal status of Guantanamo detainees.73 In its 2002 Report on Terrorism and Human Rights, the Commission again claimed the competence to interpret human rights norms in light of IHL, arguing that it is ‘imperative for the Commission to consider all relevant international norms, including those of international humanitarian law, while interpreting the international human rights law instruments for which it is responsible’.74 A much more detailed analysis of IHL obligations can be found in the Commission’s country reports. The competence of the Commission to issue such reports is particularly important in light of its engagement with countries where armed conflicts take place or took place recently. Its third country report on Colombia may serve as an example, in which a whole section with more than 300 paragraphs is devoted to IHL.75 The Commission considered such a detailed analysis particularly important in order to be able to examine the behaviour of non-State armed groups, given that all parties to an armed conflict are bound by IHL, whereas the binding force of human rights upon non-State actors remains uncertain.76 The Inter-American Court of Human Rights never fully shared the Commission’s enthusiasm for applying IHL but has nevertheless settled on a holistic view which argues strongly for the position that human rights and IHL are complementary.77 In its Las Palmeras v. Colombia case of 2000, the Court adopted a restrictive approach. In that case, which concerned the death of seven persons in the hands of the national police and armed forces of Colombia, the Colombian government had argued that the Commission and Court may only apply the American Convention.78 The Court accepted the government’s position.79 However, in a somewhat ambiguous statement in the subsequent case of Bámaca Velásquez v. Guatemala, the Court modified this position and accepted that, in a NIAC, Common Article 3 of the Geneva Conventions may guide the Court in its interpretation of the American Convention.80 Similarly, in the case of the Serrano-Cruz Sisters v. El Salvador of 2004, on the abduction of children in by the

73 See IACHR 2002a, para 80. The Martens Clause, enshrined in the preamble of the Hague Convention on the Laws and Customs of War on Land of 1907 (and in similar language in the Hague Convention of 1899) stipulates that ‘[u]ntil a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.’ 74 IACHR 2002b, para 62. 75 IACHR 1999, Chapter IV.2. 76 Ibid., Chapter IV.2, para 14. 77 See Tigroudja 2013, pp 466–467 and 471–474. 78 IACtHR, Las Palmeras v. Colombia, Judgment (Preliminary Objections), 4 February 2000, Ser. C, No. 67, para 28. 79 Ibid., para 33. 80 IACtHR, Bámaca-Velásquez v. Guatemala, Judgment (Merits), 25 November 2000, Ser. C, No. 70, para 208.

11

The Development of IHL by Human Rights Bodies

309

Salvadoran army during a military operation, the Court referred to Additional Protocol I to the Geneva Conventions.81 It seems that Court and Commission at least agree that IHL can be used to interpret human rights obligations.82 Important as this is for individual human rights violations, it is not necessarily a major contribution to the development of IHL.

11.4

European Court of Human Rights

The European Court of Human Rights (and the now defunct European Commission of Human Rights) was first confronted with the possible application of IHL obligations under the law of occupation in Northern Cyprus, where alleged violations of the European Convention on Human Rights (1950) (ECHR) by the Turkish military had resulted in the case of Cyprus v. Turkey before the Commission.83 The Commission, and in later cases the Court, restricted themselves to considering obligations under the ECHR, an approach which was criticized in dissenting opinions, for example in the case of Loizidou v. Turkey in 1996, where the complainants had argued for the applicability of the law of occupation.84 In subsequent cases such as Ergi v. Turkey in 1998, the Court began to develop what later came to be viewed as a sort of European human rights law of armed conflict, under which the Court applies the ECHR to operations and situations regardless of their possible qualification as an armed conflict to which IHL would apply.85 In the case of Ergi, Turkish security forces had indiscriminately bombarded civilian houses in their pursuit of the Kurdish Workers’ Party (PKK). The Court held Turkey responsible for violations of the right to life under the ECHR because the military operation had not been properly planned and organized so as to avoid and minimize incidental loss of civilian life. While the Court used IHL language, including notions such as ‘civilian life’,86 ‘indiscriminate bombardment of civilian houses’,87 ‘civilian areas’88 and ‘incidental loss’89 it refrained from invoking

81

IACtHR, Serrano-Cruz Sisters v. El Salvador, Judgment (Merits, Reparations and Costs), 1 March 20015, Ser. C, No. 118, para 119. 82 Buis 2008, p 293. 83 European Commission on Human Rights, Cyprus v. Turkey, Report of the Commission, 10 July 1976, Appl. Nos. 6780/74 and 6950/75. Another inter-state complaint was brought in 1977, European Commission on Human Rights, Cyprus v. Turkey, Report of the Commission, 4 October 1983, Appl. No. 8007/77. 84 E.g. European Court of Human Rights, Loizidou v. Turkey, Judgment, 18 December 1996, Appl. No. 15318/89, Dissenting Opinion of Judge Pettiti. 85 See Abresch 2005, pp 743 and 748. 86 European Court of Human Rights, Ergi v. Turkey, Judgment, 28 July 1998, Appl. No. 23818/ 94, para 79. 87 Ibid., para 10. 88 Ibid., paras 45 and 84. 89 Ibid., para 79.

310

G. Oberleitner

the respective norms of IHL but rather applied the ECHR’s law-enforcement standards to military operations.90 The Court stuck to this approach in cases concerning the two Chechen ‘wars’ (from 1994 to 1996 and from 1999 onwards) even though the use of force by the Russian armed forces and the general context was widely described as an NIAC with a most serious level of violence.91 In one of those cases, Isayeva, Yusupova and Bazayeva v. Russia decided in 2005, Russian military planes had attacked a civilian convoy near Chechnya’s capital Grozny with missiles and rockets, resulting in a great number of casualties.92 The applicants claimed violations of the ECHR as well as Common Article 3 of the Geneva Conventions.93 While the Court accepted that Russia had lawfully taken exceptional measures to regain control over parts of its territory and to ‘suppress the illegal armed insurgency’,94 it framed the events entirely within a law-enforcement operation to which the principles of the ECHR – and nothing else – applied. The Court ignored the applicants’ reliance on Common Article 3 and found Russia to have violated Article 2 of the ECHR because of the insufficient planning and execution of the operation. In Isayeva v. Russia, the applicant alleged indiscriminate bombing by the Russian military, which had attacked Chechen fighters in a village that had previously been declared a safe zone.95 While the government claimed that its use of force, including the use of heavy aerial bombardment, was necessary and proportionate, the Court concluded that the ‘massive use of indiscriminate weapons was incompatible with the standard of care prerequisite to an operation of this kind involving the use of lethal force by State agents’96 and that Article 2 ECHR had been violated. The Court obviously evaluated even such massive use of military force in an internal armed conflict against what it called ‘a normal legal background.’97 The Court’s position has been criticized as factually and legally wrong.98 Some commentators suggested that by using the language of IHL such as lawful targeting, the prohibition of indiscriminate weapons, the distinction between civilians and fighters and precautionary principles in targeting, the Court had effectively, but sub silentio, accepted IHL’s applicability.99 90

See Heintze 2004, p 810. See Leach 2008, pp 732–761. 92 European Court of Human Rights, Isayeva, Yusupova and Bazayeva v. Russia, Judgment, 24 February 2005, Appl. No. 57947/00, 57948/00 and 57949/00 (Isayeva), para 3. 93 Ibid., para 157. 94 Ibid., para 178. See the critique by Quénivet 2005, p 222. 95 See European Court of Human Rights, Isayeva v. Russia, Judgment (Mertis and Just Satisfaction), 24 February 2005, Appl. No. 57950/00 (Isayeva), para 3. 96 Ibid., para 191. 97 Ibid. 98 See Verdirame 2008, p 701. 99 See Isayeva, above n. 92, paras 175, 177, 185 and 199, and Isayeva, above n. 95, paras 176, 182, 183, 197, 190 and 198, as well as the critique by Doswald-Beck 2007, p 884; Kaye 2005, p 879; and Moir 2013, pp 484–485. 91

11

The Development of IHL by Human Rights Bodies

311

In 2008, the Court had to decide the case of Korbely v. Hungary on the killing of an armed opponent to the Communist government during the Hungarian uprising in 1956. The question was whether or not the applicant could be considered a person taking an active part in the hostilities within the meaning of IHL. The Court went to some lengths in discussing the substance of IHL in order to reach the conclusion that the applicant did not fall within the scope of Common Article 3 to the four Geneva Conventions.100 In more recent cases arising out of military operations of European States, primarily the United Kingdom (UK) in Iraq, the Court repeatedly examined the extraterritorial application of the ECHR in situations of occupation and armed conflict but was reluctant to speak out on the IHL obligations of States. In the Court’s judgment in Al-Jedda v. United Kingdom on security detention by British armed forces, the Court did, however, invoke Article 43 of the Hague Regulations of 1907 which obliges occupying States to take all the measures in their power to restore, and ensure, as far as possible, public order and safety.101 The Court effectively interpreted this article in light of human rights law as obliging the occupying States to use internment only as a measure of last resort,102 a line of reasoning which attracted considerable criticism.103 In the otherwise important case of Al-Skeini and Others v. United Kingdom (on the ill-treatment and death of persons in the custody of UK armed forces in Iraq), the Court did not engage with the obligations of occupying States under IHL.104 In the case of Hassan v. United Kingdom in 2014 (again on the detention of an Iraqi national by UK armed forces), the Court assessed Article 5 ECHR (on detention) in light of States’ obligations under IHL and found that, while the ECHR remains applicable, its standards need to be seen against the background of IHL. The Court said that ‘the grounds of permitted deprivation of liberty set out in Article 5(1) [ECHR] should be accommodated, as far as possible, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions’.105 Dissenting opinions on this decision accused the Court’s majority to have glossed over an existing conflict of norms between human rights and IHL which the Court cannot, and should not have tried to, resolve.106 While the decision seems to indicate a move away from the Court’s position that IHL plays no role when situations of armed conflict are examined, the

100 See European Court of Human Rights, Korbely v. Hungary, Judgment, 19 September 2008, Appl. No. 9174/02, paras 86–94. 101 See European Court of Human Rights, Al-Jedda v. The United Kingdom, Judgment, 7 July 2011, Appl. No. 27021/08, paras 42–43. 102 Ibid., para 107. 103 See Pejic 2012, pp 838 and 845–850. 104 See Schaefer 2011, p 580. 105 European Court of Human Rights, Hassan v. the United Kingdom, Judgment, 16 September 2014, Appl. No. 29750/09, para 104. 106 Ibid., Partly Dissenting Opinion of Judge Spano joined by Judges Nicolauo, Bianku and Kalaydjieva, para 19.

312

G. Oberleitner

ambiguity of the decision has not clarified the Court’s view on IHL’s application.107 Overall, the Court still seems to construct military operations as law-enforcement activities and ignore applicants’ references to IHL while at the same time borrowing its language and concepts.108 Commentators remain divided over this approach and what it means for the complementary nature of human rights and IHL.109 While the Court’s judgments strongly support the application of human rights to military operations, they can also be seen as challenging some central premises of IHL, and indeed there is some disquiet among humanitarian lawyers about the Court’s approach.110 The Court’s views are also likely to generate responses by States involved in military operations, as demonstrated by recent developments, such as the UK’s announcement to make use of the ECHR’s derogation provision in future military operations to avoid scrutiny by the Court.111

11.5

African Commission on Human and Peoples’ Rights

The case-law of the African Commission on Human and Peoples’ Rights on IHL comprises of comparatively few cases. The Commission attempts instead to canvas States’ support for IHL in line with its general mandate to promote human rights.112 At its 14th ordinary session in 1993, the Commission adopted a resolution on the promotion and respect of IHL and human and peoples’ rights in which it urged State parties to the African Charter on Human and Peoples’ Rights (1981) to respect IHL.113 While the Commission is in tune with other human rights bodies when it comes to the complementary application of human rights and IHL and argues that ‘even a civil war … cannot be used as an excuse by the State violating or permitting violations of rights in the African Charter,’114 IHL has played a minor role in individual communications.115 Occasional general references to IHL can be found in responses to State reports, such as the one relating to Mali in 2013, when the Commission concluded that IHL must be fully adhered to and that civilian populations and their property must be respected.116 107

See also Fachathaler 2016, pp 355–356. Koroteev 2010, pp 275–303. 109 See, for example, the various views referred to by Moir 2013, pp 480–496. 110 See Rowe 2007, p 225; and Abresch 2005, p 764. 111 For a critique, see Milanovic 2016. 112 See Tehindrazanaarivelo 2013, pp 508–509. 113 See African Commission on Human and Peoples’ Rights 1993. 114 African Commission on Human and Peoples’ Rights, Commission nationale des droits de l'homme et des libertés v. Chad (74/92), 11 October 1995, 9th Activity Report 1995–1996, para 21. 115 See Bronwen 2008, pp 171–212. 116 African Commission on Human and Peoples’ Rights 2013. Rwanda and Sudan are two other examples, see Murray 2000, p 139. 108

11

The Development of IHL by Human Rights Bodies

313

In the case of the Democratic Republic of the Congo v. Burundi, Rwanda and Uganda of 2003, the Commission was more specific on IHL.117 The Democratic Republic of Congo had alleged violations of the Geneva Conventions and Additional Protocol I by Burundi, Rwanda and Uganda and the Commission responded that systematic rape is a violation of Article 76 of Additional Protocol I. It found that ‘the Four Geneva Conventions and the two Additional Protocols covering armed conflicts constitute part of the general principles of law recognised by African States’118 which would allow the Commission (on the basis of Articles 60 and 61 of the African Charter) to resort to other general or special international conventions beyond the African Charter. However, the way in which the Commission equated IHL treaties with general principles of international law in this case remains questionable.

11.6

Human Rights Bodies and the Future of Humanitarian Law

Given that effective means and institutions for the enforcement of IHL are either lacking or dysfunctional (such as the International Humanitarian Fact-Finding Commission as per Article 90 of Additional Protocol I), human rights bodies have over time acquired an ever more prominent role in supervising compliance with IHL without having been created for such a task.119 This is likely to continue. Attempts to create monitoring mechanism within IHL seem to be going nowhere while victims of violations of humanitarian norms in armed conflicts and other situations of violence continue to approach human rights bodies and courts in search of remedies.120 With this, questions of IHL, interwoven with human rights violations, are likely to end up before human rights bodies in increasing numbers. At the same time, the lessons one can learn from the past practice of human rights bodies in dealing with IHL are not very convincing. Their practice remains inconclusive with regard to the future direction of the interplay of human rights and IHL and the possible contribution human rights bodies can make to developing IHL. While the complementary nature of human rights and IHL is seen as an established fact by all human rights bodies, their practice on the actual application of the law is uneven. While no human rights body rules out the application of IHL as being outside its respective mandate, all are reluctant to actually resort to it.

117 African Commission on Human and Peoples’ Rights, Democratic Republic of Congo v. Burundi, Rwanda and Uganda (227/99), 29 May 2003, 20th Activity Report January to June 2006, para 9. See in greater detail Tehindrazanaarivelo 2013, pp 509–511. 118 Ibid., para 70. 119 See ICRC 2011, pp 12–13; and Pfanner 2009, pp 279–328. 120 Verdirame 2008, p 691.

314

G. Oberleitner

For political bodies such as the Human Rights Council, the duality of IHRL and IHL seems to have become a kind of rhetoric tool to remind states of fundamental humanitarian principles. While the Council’s fact-finding missions and commissions of inquiry have now in fact replaced the International Humanitarian Fact-Finding Commission, they have, until recently, rarely ventured beyond general comments on humanitarian obligations. Now, the Independent International Commission of Inquiry on the Syrian Arab Republic is breaking away from such more generic references to IHL and found violations of specific IHL rules such as the use of prohibited weapons, siege warfare and attacks on schools, medical establishments and aid workers.121 The potential of the UPR to analyse IHL obligations has not been exploited and, given the lack of expertise within this peer review process, this is not likely to change. Among UN treaty bodies, the Committee on the Rights of the Child stands out as a possible contributor to the development of IHL, based on its specific mandate under the CRC. Overall, however, human rights bodies have not made significant contributions to IHL development. The Inter-American Commission and Court have settled on the view that IHL needs to be taken into account to understand the scope and content of human rights obligations in individual cases within the backdrop of armed conflict. At the same time, the Inter-American Commission provides examples of a human rights body undertaking more detailed assessments of IHL obligations within specific country situations. In contrast, the European Court of Human Rights continues to construct a human rights law of armed conflict so as to keep IHL at bay in cases before the Court. Overall, substantial legal statements on IHL are the exception and sweeping references to IHL in toto or general remarks on the importance of humanitarian principles and the congruence of IHL and human rights prevail. IHL is often used to emphasize the gravity of a human rights violation and to reinforce the protection offered by human rights law. Very few, if any, cases point directly towards clearly contradictory or incompatible standards between human rights and IHL. This reluctant approach by treaty bodies is matched by outside critique. The International Committee of the Red Cross (ICRC) is particularly concerned that any monitoring of obligations under the law of armed conflict needs to be carried out in an independent and impartial manner and that politically tainted bodies such as the UN Human Rights Council are troublesome in this regard.122 Similarly, the ICRC fears that the universal appeal of IHL might be diluted when regional human rights bodies produce contradictory decisions, inconsistent case law and double standards.123 The increasing workload of overstretched human rights bodies is another

121 122 123

See for example UN Human Rights Council 2017, paras 21–93. See ICRC 2011, pp 14–15. Ibid.

11

The Development of IHL by Human Rights Bodies

315

concern.124 None of these concerns should be dismissed, but overall it seems that, in the absence of serious and effective efforts to strengthen IHL’s enforcement through specific procedures or institutions, human rights bodies can and will increasingly engage with IHL.125 One should also note that there are certain areas where human rights bodies can make a particular contribution, such as in situations of declared emergencies involving armed conflicts or in monitoring States’ obligations on the investigation of violations of the law. The European Court of Human Rights, for example, has convincing case law in this area, as demonstrated in the case of Kaya v. Turkey of 2000 concerning a Turkish anti-terrorist military operation, where the Court found that ‘neither the prevalence of armed clashes nor the high incidence of fatalities can displace the obligation [to investigate]’.126 In order to overcome potential shortcomings, proposals for strengthening human rights bodies in their approach to IHL may need to be reconsidered, such as the creation of specific reporting or complaint procedures for IHL or creating new bodies altogether devoted to monitoring human rights and IHL.127 Ultimately, any such attempts to give human rights bodies an enhanced role in influencing the future development of IHL must not dilute the credibility, realism and distinctiveness of IHL.

References Abresch W (2005) A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya. European Journal of International Law 16:741–767. African Commission on Human and Peoples’ Rights (1993) Resolution on the promotion and respect of international humanitarian law and human and peoples’ rights, 14th Ordinary Session, 1–10 December 1993. http://www.achpr.org/sessions/14th/resolutions/7. Accessed 7 January 2018. African Commission on Human and Peoples’ Rights (2013) Statement by the African Commission on the situation in Mali, 18 January 2013. http://www.achpr.org/press/2013/01/d140. Accessed 7 January 2018. Alston P (1992) The Commission on Human Rights. In: Alston P (ed) The United Nations and Human Rights. A Critical Appraisal. Clarendon, Oxford, pp 126–210. Alston P, Morgan-Foster J et al. (2008) The Competence of the UN Human Rights Council and Its Special Procedures in Relation to Armed Conflicts: Extrajudicial Executions in the ‘War on Terror’. European Journal of International Law 19:183–209. Bothe M (2005) Die Anwendung der Europäischen Menschenrechtskonvention in bewaffneten Konflikten – eine Überforderung? Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 65:615–623. Bronwen M (2008) Civil and Political Rights in the African Charter on Human and Peoples’ Rights: Articles 1–7. In: Evans M, Murray R (eds) The African Charter of Human and Peoples’

124

See Bothe 2005, pp 622–633. As suggested, for example, in UN Human Rights Council 2009a, para 42. 126 European Court of Human Rights, Kaya v. Turkey, Judgment, 28 March 2000, Appl. No. 22729/93, para 91. 127 See, e.g., Drzewicki 2001, pp 73–81; and Kleffner and Zegveld 2000, pp 384–401. 125

316

G. Oberleitner

Rights: The System in Practice, 1986–2006, 2nd edn. Cambridge University Press, Cambridge, pp 171–212. Buis EJ (2008) The Implementation of International Humanitarian Law by Human Rights Courts: The Example of the Inter-American Human Rights System. In: Arnold R, Quénivet N (eds) International Humanitarian Law and Human Rights Law. Towards a Merger in International Law. Nijhoff, Leiden, pp 269–293. Doswald-Beck L (2007) The Right to Life in Armed Conflict: Does International Humanitarian Law Provide all the Answers? International Review of the Red Cross 88:881–904. Drzewicki K (2001) The Possible Shape of a Reporting System for International Humanitarian Law: Topics to Be Addressed. In: Bothe M (ed) Towards a Better Implementation of International Humanitarian Law. Proceedings of an Expert Meeting Organised by the Advisory Committee on International Humanitarian Law of the German Red Cross, Frankfurt am Main, 28–30 May 1999. Arno Spitz, Berlin, pp 73–81. Fachathaler T (2016) Hassan v. United Kingdom and the Interplay between International Humanitarian Law and Human Rights Law in the Jurisprudence of the European Court of Human Rights. European Yearbook of Human Rights, pp 345–356. Heintze H-J (2004) On the Relationship between Human Rights Law Protection and International Humanitarian Law. International Review of the Red Cross 86:789–814. Human Rights Committee (2001) General Comment No. 29 on states of emergency (Article 4). UN Doc. CCPR/C/21/Rev.1/Add.11. Human Rights Committee (2003) Concluding Observations on Israel. UN Doc. CCPR/CO/78/ISR. Human Rights Committee (2004) General Comment No. 31 on the nature of the general legal obligation imposed on states parties to the Covenant (Art. 2). UN Doc. CCPR/C/21/Rev.1/ Add.13. Human Rights Committee (2018) General Comment No. 36 on the right to life (Article 6). UN Doc. CCPR/C/GC/36. Inter-American Commission on Human Rights (1999) Report on the Situation of Human Rights in Colombia. OAS Doc. OEA/Ser.L/V/II.102 Doc. 9 rev.1. Inter-American Commission on Human Rights (2002a) Precautionary Measures 2002. http://www. cidh.org/medidas/2002.eng.htm. Accessed 31 May 2019. Inter-American Commission on Human Rights (2002b) Report on Terrorism and Human Rights. OAS Doc. EA/Ser.L/V/II.116, Doc. 5 rev. 1 corr. International Committee of the Red Cross (2011) Strengthening Legal Protection for Victims of Armed Conflict, ICRC Doc. 31IC/11/5.1.1. Kälin W (2013) Universal Human Rights Bodies and International Humanitarian Law. In: Kolb R, Gaggioli G (eds) Research Handbook on Human Rights and Humanitarian Law. Edward Elgar, Cheltenham, pp 454–455. Kaye D (2005) International Decision (Comment on Khasyivev & Akayeva V. Russia; Isayeva, Yusupova & Bazayeva v. Russia; Isayeva v. Russia). American Journal of International Law 99:873–881. Kleffner J, Zegveld L (2000) Establishing an Individual Complaints Procedure for Violations of International Humanitarian Law. Yearbook of International Humanitarian Law 2000, pp 384– 401. Koroteev K (2010) Legal Remedies for Human Rights Violations in the Armed Conflict in Chechnya: The Approach of the European Court of Human Rights in Context. Journal of International Humanitarian Legal Studies 1:275–303. Leach P (2008) The Chechen Conflict: Analysing the Oversight of the European Court of Human Rights. European Human Rights Law Review 6:732–761. Milanovic M (2016) UK to derogate from the ECHR in Armed Conflict. http://www.ejiltalk.org/ uk-to-derogate-from-the-echr-in-armed-conflict. Accessed 7 January 2018.

11

The Development of IHL by Human Rights Bodies

317

Moir L (2013) The European Court of Human Rights and International Humanitarian Law. In: Kolb R, Gaggioli G (eds) Research Handbook on Human Rights and Humanitarian Law. Edward Elgar, Cheltenham, pp 480–502. Murray R (2000) The African Commission on Human and Peoples’ Rights and International Law. Hart, Oxford. Oberleitner G (2015) Human Rights in Armed Conflict - Law, Practice, Policy. Cambridge University Press, Cambridge. Pejic J (2012) The European Court of Human Rights’ Al-Jedda Judgment: The Oversight of International Humanitarian Law. International Review of the Red Cross 93:845–850. Pfanner T (2009) Various Mechanisms and Approaches for Implementing International Humanitarian Law and Protecting and Assisting War Victims. International Review of the Red Cross 91:279–328. Quénivet N (2005) Isayeva v. the Russian Federation and Isayeva, Yusupova and Bazayeva v. the Russian Federation: Targeting Rules According to Article 2 of the European Convention on Human Rights. Journal of International Law of Peace and Armed Conflict 3:219–226. Ramcharan B (2011) The Human Rights Council. Routledge, Abingdon. Ricca M (2002) Human Rights and the UN Special Rapporteurs’ System. Tendencies in Reporting on Conflict Areas. Journal of International Law of Peace and Armed Conflict 15:169–172. Rowe P (2007) Non-international Armed Conflict and the European Court of Human Rights: Chechnya from 1999. New Zealand Yearbook of International Law 2007, pp 205–226. Schaefer M (2011) Al-Skeini and the Elusive Parameters of Extraterritorial Jurisdiction. European Human Rights Law Review 16: 566–581. Tehindrazanarivelo DL (2013) African Union and International Humanitarian Law. In: Kolb R, Gaggioli G (eds) Research Handbook on Human Rights and Humanitarian Law. Edward Elgar, Cheltenham, pp 503–530. Tigroudja H (2013) The Inter-American Court of Human Rights and International Humanitarian Law. In: Kolb R, Gaggioli G (eds) Research Handbook on Human Rights and Humanitarian Law. Edward Elgar, Cheltenham, pp 466–479. UN Commission on Human Rights (1967) Resolution 2 (XXIII). ECOSOC Official Records 42, Supplement 6. UN Commission on Human Rights (1987) Report of the Special Representative of the Commission on Human Rights. UN Doc. E/CN.4/1987/61. UN Commission on Human Rights (1992) Resolution S/1-1. UN Doc. E/CN.4/RES/1992/S-1/1. UN Commission on Human Rights (1994) Resolution S-3/1. UN Doc. E/CN.4/RES/1994/S-3/1. UN Commission on Human Rights (1996) Resolution 1996/68. UN Doc. E/CN.4/RES/1996/68. UN Committee on Economic, Social and Cultural Rights (2004) Concluding Observations on Israel, UN Doc. E/C.12/1/Add.90. UN Committee on the Elimination of all Forms of Discrimination against Women (1992) General Comment No. 19, Violence against Women. UN Doc. HRI/GEN/1/Rev.9. UN Committee on the Elimination of Racial Discrimination (2004) General Recommendation No. 30 on discrimination against non-citizens. UN Doc. CERD/C/64/Misc.11/rev.3. UN Committee on the Rights of the Child (1997) Concluding Observations on Uganda. UN Doc. CRC/C/15/Add.80. UN Committee on the Rights of the Child (2001) General Comment No. 1 on the aims of education. UN Doc. CRC/GC/2001/1. UN Committee on the Rights of the Child (2002) Concluding Observations on Israel. UN Doc. CRC/C/15/Add.195. UN Committee on the Rights of the Child (2005) General Comment No. 6 on the treatment of unaccompanied and separated children outside their country of origin. UN Doc. CRC/GC/ 2005/6. UN Committee on the Rights of the Child (2009) General Comment No. 11 on indigenous children and their rights under the Convention. UN Doc. CRC/C/GC/11. UN General Assembly (2006) Resolution 60/251. UN Doc. A/RES/60/251.

318

G. Oberleitner

UN Human Rights Council (2001) Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Mr. Miloon Kothari. UN Doc. E/ CN.4/2001/51. UN Human Rights Council (2004a) Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Mr. Miloon Kothari. UN Doc. E/ CN.4/2004/48. UN Human Rights Council (2004b) Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Execution, Philip Alston. UN Doc. E/CN.4/2005/7. UN Human Rights Council (2006a) Report of the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy. UN Doc. E/CN.4/2006/52. UN Human Rights Council (2006b) Report of the Special Rapporteur on the sale of children, child prostitution and child pornography, Juan Migueal Petit. UN Doc. E/CN.4/2006/67. UN Human Rights Council (2006c) Resolution 5/1, Institution-building of the United Nations Human Rights Council, UN Doc. A/HRC/RES/5/1, annex. UN Human Rights Council (2007) Report of the Special Rapporteur on adverse effects of illicit movement and dumping of toxic and dangerous products and waste on the enjoyment of human rights, Okechukwu Ibeanu. UN Doc. A/HRC/5/5. UN Human Rights Council (2008a) Report of the Human Rights Council on its Ninth Session. UN Doc. A/HRC/9/28. UN Human Rights Council (2008b) Report of the Working Group of the Universal Periodic Review: Pakistan, UN Doc. A/HRC/8/42. UN Human Rights Council (2008c) Resolution 9/9. UN Doc. A/HRC/RES/9/9. UN Human Rights Council (2009a) Report of the Office of the High Commissioner for Human Rights on the outcome of the expert consultation on the issue of protecting the human rights of civilians in armed conflict. UN Doc. A/HRC/11/31. UN Human Rights Council (2009b) Report of the Working Group of the Universal Periodic Review: Central African Republic. UN Doc. A/HRC/12/22. UN Human Rights Council (2010a) Report of the Office of the High Commissioner for Human Rights on the outcome of the expert consultation on the issue of protecting the human rights of civilians in armed conflict. UN Doc. A/HRC/14/40. UN Human Rights Council (2010b) Report of the Working Group of the Universal Periodic Review: Israel, UN Doc. A/HRC/10/76. UN Human Rights Council (2011a) Report of the Working Group of the Universal Periodic Review: Somalia. UN Doc. A/HRC/18/6. UN Human Rights Council (2011b) Report of the Working Group of the Universal Periodic Review: United States of America. UN Doc. A/HRC/16/11. UN Human Rights Council (2013) Report of the Independent International Fact-finding Mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem. UN Doc. A/HRC/22/63. UN Human Rights Council (2017) Report of the Independent Commission of Inquiry on the Syrian Arab Republic. UN Doc. A/HRC/34/64. UN Human Rights Council. Sessions. http://www.ohchr.org/EN/HRBodies/HRC/Pages/Sessions. aspx. Accessed 7 February 2017. UN Office of the High Commissioner for Human Rights (2011) International Legal Protection of Human Rights in Armed Conflict. United Nations, Geneva. van Boven T (1991) Reliance on Norms of Humanitarian Law by United Nations’ Organs. In: Delissen A J M, Tanja G J (eds) Humanitarian Law of Armed Conflict: Challenges Ahead. Essays in Honour of Frits Kalshoven. Nijhoff, Dordrecht, pp 495–512. Verdirame G (2008) Human Rights in Wartime: A Framework for Analysis. European Human Rights Law Review 6:689–705. Weissbrodt D (2010a) The Role of the Human Rights Committee in Interpreting and Developing Humanitarian Law. Pennsylvania Journal of International Law 31:1185–1237.

11

The Development of IHL by Human Rights Bodies

319

Weissbrodt D (2010b) The Approach of the Committee on the Elimination of Racial Discrimination to Interpreting and Applying International Humanitarian Law. Minnesota Journal of International Law 19:327–362. Weissbrodt D, Hansen J C et al. (2011) The Role of the Committee on the Rights of the Child in Interpreting and Developing International Humanitarian Law. Harvard Human Rights Journal 24:115–153.

Gerd Oberleitner Institute of International Law and International Relations, University of Graz.

Chapter 12

Targeting Members of Non-State Armed Groups in NIACs: An Attempt to Reconcile International Human Rights Law with IHL’s (De Facto) Status-Based Targeting Nader I. Diab

Contents 12.1 Introduction...................................................................................................................... 12.2 Law Enforcement, the Conduct of Hostilities Paradigm and the Use of Lethal Force ................................................................................................................................ 12.3 Interpreting IHRL in Light of IHL: The Principle of Systemic Integration.................. 12.4 Targeting of Members of Armed Groups Under IHRL ................................................. 12.5 Targeting of Members of Non-State Armed Groups in NIACs: A Conduct-Based Approach to Determine Membership in NSAG? ........................................................... 12.6 Towards a Status-Based Use of Lethal Force Under IHRL in Times of Armed Conflict ............................................................................................................................ 12.7 Conclusion ....................................................................................................................... References ..................................................................................................................................

322 324 328 332 337 341 345 346

Abstract This chapter explores the relationship between international human rights law and international humanitarian law in the targeting of members of armed groups in non-international armed conflicts. It attempts to flesh out points of convergence between these two branches concerning their respective frameworks on the use of lethal force against persons. In this regard, the chapter analyzes the role played by ‘conduct’ and ‘function’ in determining the lawfulness of the use of lethal

N. I. Diab (&) Independent Researcher, Brussels, Belgium e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 E. Heffes et al. (eds.), International Humanitarian Law and Non-State Actors, https://doi.org/10.1007/978-94-6265-339-9_12

321

322

N. I. Diab

force in both legal regimes and demonstrates that these are not as far apart on this issue as is generally believed. Hence, by applying the principle of systemic integration, it attempts to use these points of convergence to find a space in human rights law for a quasi-regime of status-based targeting of members of armed groups in non-international armed conflicts. The chapter nonetheless cautions against any exercise of interpretation that overstretches and distorts international human rights law or international humanitarian law. It thus highlights the limits in some circumstances of incorporating the abovementioned status-based regime, as well as guarding against attempts to align both legal branches to the detriment of their object and purpose.










Keywords Lex Specialis Systemic Integration Conduct of Hostilities Law Enforcement Non-State Armed Groups Non-International Armed Conflicts Use of Lethal Force




12.1







Introduction

Interpreting legal rules always entails the risk of distortion. This is acute when rules from different branches of international law are interpreted in light of each other. Different branches do not necessarily operate according to the same logic nor do they necessarily share the same objectives. When such rules protect lives and govern the circumstances in which they can be taken away, the stakes are high. This is the challenge faced by judicial and quasi-judicial human rights bodies in assessing the lawfulness of the use of lethal force by a State’s armed forces during an armed conflict. These scenarios are regulated by international humanitarian law (IHL), which establishes the rules for targeting individuals—and so the use of lethal force against them—based on their status, either as civilians or combatants. International human rights law (IHRL), the basic tenets of which are premised on the idea that all human beings are equal, and hence all enjoy equally the right to life and the right not to be arbitrarily deprived of such a life, does not provide for the same regulation on grounds of individuals’ status. Therefore, the lawfulness of the use of lethal force in armed conflicts is assessed under IHRL according to the conduct of individuals under IHL, which is done on a case by case basis. This chapter will examine the extent to which the right to life, as enshrined in IHRL, may be reconciled with IHL notion that a certain category of persons—albeit not formaly recognized—can be targeted at anytime during non-international armed conflicts (NIACs). In that regard, it will offer a possible blueprint for human rights judicial bodies to harmonize, as far as possible, both legal regimes when looking at cases of use of lethal force by States against non-State armed groups (NSAG). It will look at the specific case of the targeting of members of NSAGs by a State during NIACs, a situation where, unlike international armed conflicts (IACs), the boundaries between law-enforcement and armed hostilities are often blurred. This is because IHL rules on targeting in NIACs lack the clarity found in those applicable

12

Targeting Members of Non-State Armed Groups in NIACs …

323

to IACs. This chapter will therefore explore an area of legal uncertainty, in order to bring IHRL and IHL closer on an issue considered to epitomize their fundamental divergences. The rationale behind this chapter stems from concerns over the unsatisfactory approach that various human rights bodies have taken in relation to IHL in situations where lethal force was used against persons in NIACs. Section 12.2 starts by examining the paradigms governing the use of lethal force under these legal frameworks, namely the law enforcement and conduct of hostilities paradigms. Human rights bodies are responsible for upholding the ‘integrity’ of those human rights standards enshrined in human rights treaties. Section 12.3 argues that any interpretation of human rights treaties should preferably use IHL as a means of interpreting the relevant treaty provisions, but not replacing them by giving IHL primacy or by over-stretching the provision of the right to life. Sections 12.4 and 12.5 look at the underlying rationale for using force against NSAG’s members under IHRL and IHL respectively. They argue that persons that can be targeted at any time in NIACs lose their protection from attack based on the threat stemming from their conduct or on their capacity to engage in such threatening conduct due to their function in the NSAG. Thus, such threat is the basis on which membership in NSAG is recognized in NIACs. For the sake of clarity, such category will be referred to generically as ‘fighters’ under IHL without suggesting that they are a legally recognized category of individuals such as combatants in IACs. Similarly, while this paper will refer to ‘status’ and ‘status-based targeting’ in NIACs it by no means posits that fighters are legally endowed under IHL with a ‘status’ similar to combatants in IACs. It simply posits that the existence of persons that can be targeted at any time gives rise to a situation of ‘de facto’ status even though such a situation is not enshrined in relevant legal texts. While the statement may appear ambiguous or confusing, this ‘grey area’ status is only a reflection of the grey area in which NIAC law sometimes finds itself, and that is the result of States’ reluctance to regulate NIACs and particularly to define who has the right to participate in hostilities just like in IACs. As individual’s behaviour is the primary parameter used to assess the lawfulness of the use of force under IHRL, the two branches meet in justifying the necessity of taking someone’s life for the purpose of extinguishing the threat that a person presents. Nevertheless, this similarity between these two branches of international law hardly amounts to an overlap. For example, unlike IHL, IHRL allows for the use of lethal force only as a last option. However, while this point of intersection is imperfect, it is used in the following pages to interpret IHRL in light of IHL. Section 12.6 precisely attempts to demonstrate how the notion of threat under IHL can be imported to IHRL. This aims at creating a quasi-regime for the use of lethal force on the basis of status under IHRL, which could also be applicable during NIACs. The last section addresses the limits of such an interpretation, given the necessity of preserving the integrity of the fundamental characteristics and so the raison d’être of each body of law.

324

12.2

N. I. Diab

Law Enforcement, the Conduct of Hostilities Paradigm and the Use of Lethal Force

The kind and degree of lethal force that a State can use in a particular situation is subject to different criteria. One factual element in this sense is whether this takes place in the context of an armed conflict or during peacetime. A traditional approach claims that while during the latter States operate within the boundaries of a law-enforcement paradigm that is derived from IHRL,1 in times of war it is exclusively the one of IHL’s conduct of hostilities.2 It has been recognized, however, that even in these situations States may also carry out, partly or entirely, law-enforcement operations. This could be, for instance, in occupations in the context of IACs, or more generally in NIACs.3 With the increased acceptance of the applicability of IHRL in armed conflicts, the law enforcement paradigm also seems to apply to situations that previously were seen as exclusively within the realm of IHL. Given the present state of the lex lata in times of armed conflict, both paradigms are seen to apply concurrently. The boundaries of those models, however, have not yet been defined. For instance, a NIAC in which the State is a party to the conflict presents particular challenges. This is because, while conducting hostilities, the government could be seen as conducting a law-enforcement, regardless of the means used, in order to restore law and order.4 This law-enforcement logic even manifests itself in instances of extra-territorial use of force,5 as some States employ justifications for using force abroad that are related to the necessity of restoring law and order at

1

The right to life is protected by human rights treaties such as: International Covenant on Civil and Political Rights, opened for signature 16 December 1966, UNTS 999, entered into force 23 March 1976 (ICCPR), Article 6; European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, opened for signature 4 November 1950, Council of Europe, ETS 5, entered into force 3 September 1953 (ECHR), Article 2; African Charter on Human and Peoples’ Rights, opened for signature 27 June 1981, Organization of African Unity, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58, entered into force 21 October, Article 4; and American Convention on Human Rights, opened for signature 22 November 1969, Organization of American States, entered into force 18 July 1978, Article 4. Furthermore, several soft-law instruments regulate the conduct of law-enforcement officials including the issue of use of force. These instruments include: Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (1990); United Nations General Assembly (1979); and United Nations Economic and Social Council (1989). 2 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, adopted 8 June 1977, 1125 UNTS 3, entered into force 7 December 1978 (AP I), Articles 48–58; Henckaerts and Doswald-Beck 2005, rules 1–86. 3 ICRC 2013, p 1. 4 Watkin 2004, p 5. 5 Melzer and Gaggioli 2015, p 36.

12

Targeting Members of Non-State Armed Groups in NIACs …

325

home.6 Furthermore, when States target fighters belonging to NSAG in NIACs (often considered criminals under domestic law), both branches may be applicable.7 Hence, the interplay between the abovementioned paradigms depends on the way their underlying legal frameworks, namely IHRL and IHL, interact. As will be discussed in the next section, those legal frameworks are not mutually exclusive. Quite the contrary, they can overlap and be useful tools to interpret one another. Therefore, the relationship between the two paradigms should not systematically be seen in terms of opposition, but of a ‘continuum’ between them.8 Their underlying logic is similar: only persons representing a threat can be targeted; incidental losses should be minimized; and precautions should be taken in order to minimize these losses.9 However, moving across that ‘continuum’ is not without difficulties as the two paradigms can elicit fundamental differences due to their underlying legal frameworks. In more concrete terms, under IHL the lawfulness of an attack against military objectives is presumed—unlike IHRL, whereby the State must show that other measures were proven to be, or would have been, inadequate.10 Similarly, the very notion of waiving the fundamental protection from an individual due to his or her status, for instance, by becoming a lawful target of military force is anathema to IHRL. In fact, the principle of distinction in IHL that draws a line between two categories of persons—those that can be targeted at any time (combatants or individuals directly participating in hostilities) and those that are protected (civilians)—challenges the basic premise of IHRL that all human beings enjoy the same fundamental rights, regardless of their status. As the right to life is guaranteed to all persons under IHRL, it follows that this body of law, which is premised on the prohibition of discrimination, cannot accept that the lives of some individuals can be protected while the lives of others can be taken away.11 Under IHRL, unlike IHL, the lawfulness of the use of force is not dependent on the status of the targeted person but on the threat he or she poses at the time of the use of lethal force. Further, the law enforcement paradigm requires that any operation … must be planned, prepared, and conducted so as to minimize, to the greatest extent possible, the recourse to lethal force (precaution). Potentially lethal force

6

In the wake of terrorist attack in Nice, France, on 14 July 2016, President Holland stepped up airstrikes against ISIS in Iraq and Syria as the author was believed to be linked or inspired by the terrorist group. See Srivastava S (2016) Nice attack: What it means for fight in Syria, Iraq, CNBC, 15 July 2016. http://www.cnbc.com/2016/07/15/nice-attack-what-it-means-for-fight-in-syria-iraq. html. Accessed 24 December 2016. 7 ICRC 2013, p 1 (‘For example, in a non-international armed conflict, when a State is using force against fighters, it may be considered as simultaneously conducting hostilities and maintaining law and order (since fighters are also frequently criminals under domestic law.’). See also Melzer and Gaggioli 2015, p 76. 8 Gaggioli 2013, p 358. 9 Ibid. 10 Ibid. 11 Quénivet 2008, p 344.

326

N. I. Diab

may only be used in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape (proportionality), and only when less extreme means are insufficient to achieve these objectives (necessity). The use of force with the actual intent to kill is only permissible when strictly unavoidable to protect life.12

Moreover, the use of lethal force should be regulated and have a sufficient legal basis in domestic law.13 In the absence of such urgent and immediate necessity to protect a life against an imminent threat, non-lethal means should always be contemplated.14 Hence, when the threat against a person reaches a certain level, the use of lethal force is permitted only when it is absolutely necessary.15 Such restrictions mean that the decision to use lethal force is taken within seconds, and not hours.16 Moreover, the use of lethal force must not only be strictly necessary to neutralize the threat at hand, but must also remain proportionate to such a threat. As it can be seen, law-enforcement operations will depend on the circumstances of each case. The parameters of the use of lethal force under IHRL are indeed “fact-dependent”.17 Hence, the means and methods of the law enforcement paradigm can greatly differ from one factual context to another.18 Furthermore, both the IHL and IHRL paradigms can cause confusion as they share similar terminology. The terms ‘precaution’, ‘proportionality’ and ‘necessity’ are all found in IHRL and IHL. However, they do not necessarily have the same meaning under these legal regimes, and such conceptual differences should always be kept in mind.19 For example, proportionality under IHL refers to balancing the incidental loss of and injury to civilian life, damage to civilian objects, or the combination thereof of an attack on the one hand with the concrete and direct military advantage anticipated on the other.20 In contrast, and as explained above, proportionality in IHRL governs the balance between the threat posed by the person on the one hand and the use of lethal force against that person on the other.21 12

Melzer and Gaggioli 2015, p 70. Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders 1990, Principle 9; ECtHR, McCann and Others v. United Kingdom, Judgment, 27 September 1995, Application No 18984/91 (McCann and Others v. United Kingdom), para 139; Melzer 2008, pp 100–101. 14 Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders 1990, state that ‘[l]aw enforcement officials, in their relations with persons in custody or detention, shall not use firearms, except in self-defence or in the defence of others against the immediate threat of death or serious injury’, Principle 16. For more information on immediacy, see Otto 2012, p 199. 15 Human Rights Council 2014, para 60. 16 Ibid., para 59. 17 Hakimi 2016. 18 Oberleitner 2015, pp 136–137. 19 Lubell 2005, p 746. 20 AP I, above n 2, Article 51.5.b. 21 Melzer 2008, p 101. 13

12

Targeting Members of Non-State Armed Groups in NIACs …

327

The principle of necessity is not conceptually different under IHL and IHRL, unlike the proportionality one. The principles of necessity found under both branches of international law find common grounds in some circumstances without overlapping. Under both legal regimes, the use of lethal force cannot go beyond what is necessary to achieve a given purpose. Under IHL, the goal is to obtain a military advantage in order to secure ‘the ends of the war’22. Under IHRL, the overall purpose is to ‘maintain, restore, or otherwise impose law and order in the circumstances of the case.’23 A State using force against a member of a NSAG during a NIAC aims at achieving a military victory but also to (re)impose law and order. However, a fundamental difference between the two principles in guiding (or limiting) the action of a State is that the principle of necessity under IHL can be seen to be less restrictive than the one under IHRL. A State under IHRL has to justify the necessity of using lethal force in the circumstances of each case when it was used, notwithstanding the fact that general circumstances such as the existence of disturbances can factor in the lawfulness assessment. The use of lethal force is directed at a specific threat and aims at restoring the status quo ante.24 Under IHL, however, the necessity of using lethal force against legitimate targets is presumed.25 Thus, the exceptional regime of necessity is not restricted to the circumstances of the attack in each case but is inherent to the overarching state of armed conflict.26 This is why 22 Instructions for the Government of Armies of the United States in the Field, 24 April 1863, General Orders No. 100 (Lieber Code), Article 14: ‘Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.’ 23 Melzer 2008, p 101. For more on these ‘paradigmatic’ differences between IHL and IHRL in the realm of the use of force, see Oberleitner 2015, pp 133–136. 24 Corn 2010, p 76. 25 ICRC 2013, p 8. See also Hill-Cawthorne 2014, p 230 (military necessity is ‘a justification for departing from the normally applicable rules.’ Furthermore, Hill-Cawthorne considers that the principle of necessity—on top of its function as a balancing principle with humanitarian considerations—plays a constitutive role in IHL. In that regard, see Hill-Cawthorne 2014, p 232: ‘In other words, it is the underlying state of necessity (which exists by virtue of an international or non-international armed conflict) that is the raison d’être of IHL; it is that state of necessity which explains the non-adherence to many of the normal peacetime rules of law (such as the ordinary domestic law and IHRL with regard to a state’s internal actions, and normal interstate relations with regard to a state’s external actions).’) 26 This statement, however, should be contrasted. Article 52.2 of AP I permits only attacks against objects that offer a definite military advantage according to the circumstances ruling at the time of the attack (emphasis added). Also Articles 51.3 of AP I and 13.3 of Additional Protocol II (AP II) waive protection from civilians ‘unless and for such time as’ they directly participate in hostilities. This is akin to IHRL where the lawfulness of the use of lethal force is judged by the circumstances of each case. However, the military advantage is presumed if the object of the attack was a military target by nature regardless of the imminence of the threat it posed at the time of the attacks. In that sense, the existence of an armed conflict in itself provides an underlying justification for such regime of necessity in targeting. First it should be noted that no similar rule to the one stated in Article 52.2 or Articles 51.3 and 13.3 exists for attacks against fighters or combatants. For example, see Milanovic 2011a, p 119 (‘Both the ICCPR and the ECHR can easily be interpreted as

328

N. I. Diab

status-based targeting does not find a home in IHRL because the principle of necessity is context-specific. Hence, it is assessed on the facts of each particular case where lethal force was used. Furthermore, the principle of necessity under IHL is not as precise as its counterpart in IHRL as it concerns the objectives to be achieved (i.e. self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such danger and resisting the authority of the State, or to prevent his or her escape). In fact, the principle of necessity in IHL is not precise enough to ‘provide detailed guidance on what are permissible aims, means and methods of warfare, and what are not.’27 This lack of precision makes the principle of necessity in IHL less constraining than its counterpart in IHRL.

12.3

Interpreting IHRL in Light of IHL: The Principle of Systemic Integration

While it is settled that IHRL applies in times of armed conflict, the debate has moved to the way in which IHL and IHRL actually interact in practice.28 The ambiguity of this relationship is yet to be clarified with regards to particular rights, with much of the debate concentrating on the merits of the different interpretative tools available in international law. One legal tool of interpretation, lex specialis derogat legi generali, has gained much traction29 after being used by the ICJ in the Nuclear Weapons Case in 1996.30 According to the lex specialis principle, ‘if a matter is being regulated by a general standard as well as a more specific rule, then the latter should take precedence over the former.’31 The principle can be interpreted either to mean that IHL displaces en bloc IHRL in times of armed conflict, or that either IHRL or IHL can be the more precise rule depending on the situation, or that both bodies of law can be used as interpretative rules for each other.32 While the lex specialis principle is not without its merits with regards to certain aspects—such as articulating the relationship between norms within a single treaty requiring a showing of necessity before any intentional deprivation of life, while, as we have seen, IHL purposefully does not require such a showing in respect of combatants or civilians taking a direct part in hostilities.’) 27 Aughey and Sari 2015, p 93. 28 McCarthy 2008, p 103; see also Lubell 2005, p 738. 29 Prud’homme 2007, p 376; see also Milanović 2016, p 78. 30 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, I.C. J. Reports, p 226 (Nuclear Weapons Case). 31 ILC 2006, pp 34–35. 32 Nancie Prud’homme gives an overview of the different interpretations. See Prud’homme 2007, pp 372–374.

12

Targeting Members of Non-State Armed Groups in NIACs …

329

or related treaties33—it is submitted that it is inadequate to govern the relationship between IHL and IHRL. The use of lex specialis has brought in this sense more confusion than clarification.34 This chapter will not discuss the merits of using the lex specialis principle but will refer to the well-argued literature that highlighted its shortcomings, in particular when it comes to regulating the relationship between IHL and IHRL.35 Therefore, a better approach is to submit that relevant provisions from both branches of law apply to a given situation. In interpreting the relevant IHL or IHRL norm to determine whether a State has complied with its obligations under one of the branches, the other legal regime can be taken into consideration. This is the principle of systemic integration that finds its source in Article 31.3.c of the VCLT.36 It provides that relevant rules of international law applicable between the parties can and should be used to interpret a treaty. It should be noted, however, that this is a principle of interpretation which does not seek to, ultimately, reconcile both branches of law. Rather, it can bring them closer to the extent possible.37 For example, in some instances, the requirements of human rights law can be relaxed or read down in times of armed conflict.38 However, relaxing the interpretation of norms does not mean bending them until they are aligned with the requirements of IHL. This would amount to extinguishing them and thus, curtailing the very protection the body of law seeks to provide. For instance, the ‘IHRL necessity standard might be relaxed somewhat to take into account the fact of armed conflict, but it is hard to see how it can be totally extinguished, as IHL warrants, as soon as an armed conflict takes place and solely on the basis of the person’s status.’39 It should be accepted that in some circumstances the principle of systemic integration will reach its limits. In some cases, either of the branches may be

33

Oberleitner 2015, p 89. For example, see ECtHR, Ezelin v France, Judgment, 26 April 1991, Application no. 11800/85, para 35. 34 Milanović 2011a, p 98. 35 See e.g. Milanović 2011a; Oberleitner 2015; Prud’homme 2007; Borelli 2015; Lindroos 2005. 36 Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 U.N.T.S, entered into force 27 January 1980 (VCLT), Article 31.3.c (‘1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose…3. There shall be taken into account, together with the context:…(c) any relevant rules of international law applicable in the relations between the parties.’). 37 When interpreting the provisions of the ECHR in light of other branches of international law including IHL, the Court cautioned that such interpretation should be done ‘so far as possible’. See ECtHR, Varnava and Others v Turkey, Grand Chamber Judgment, 18 September 2009, Applications nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, para 185. See also ECtHR, Hassan v. United Kingdom, Judgment, 16 September 2014, Application, no. 29750/09 (Hassan v. United Kingdom), para 102. However, the analysis of the Court in that regard was far from satisfactory as will be shown later. 38 Milanović 2011b, p 240. 39 Milanović 2011a, p 119.

330

N. I. Diab

violated, even after attempting to interpret them using the principle. Consequently, it is important that the principle of systemic integration does not represent, deliberately or not, a cover-up for the lex specialis one, nor the stretching of the relevant provision to the point of distortion in order for it to accommodate other branches of international law. Otherwise this interpretation would constitute, in effect, a form of norm creation. Such overstretching may be illustrated with an example that is particularly relevant to this section: the prohibition of the arbitrary deprivation of life. Article 6.1 of the International Covenant on Civil and Political Rights (ICCPR) provides that ‘[e]very human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.’ It is tempting to interpret the arbitrariness standard in light of the IHL requirements on the use of lethal force. In other words, by using the principle of systemic interpretation and without resorting to the lex specialis principle (at least not intentionally), the arbitrariness standard in Article 6 of the ICCPR is assessed according to what is unlawful under IHL.40 Therefore, if an attack against a person complies with the IHL principles of distinction, proportionality and precaution, then it would not be arbitrary under IHRL. Such interpretation, however, is flawed as it distorts the right to life in Article 6 by substituting it under the guise of interpretation with a different branch of international law, i.e. IHL. The word ‘arbitrary’ is not a word devoid of legal substance so that it can be substituted with the requirements of other branches of international law. As indicated above, the lawfulness of the use of lethal force under IHRL is assessed according to the principles of precaution, proportionality and necessity—which are different in the context of IHL, despite the identical terminology. Hence, the arbitrary deprivation of life has to be judged taking those three requirements into consideration, and assessing them on a case by case basis. Any exercise of interpretation and harmonization should take into account those underlying requirements. It would be inconsistent to ignore the principles of precaution, necessity and proportionality under IHRL when interpreting the arbitrariness standard in light of IHL principles. Such an interpretation would wrongly take for granted that the constraints on the use of lethal force under IHL are similar to those under IHRL.41 Relaxing those principles by way of interpreting them

40 Milanović discussed the application of this principle by the ICJ in the Nuclear Weapons case with regards to the right to life in international armed conflicts. See Milanović 2011b, p 240. Jean-Marie Henckaerts adheres to such an interpretation of the ‘arbitrariness’ standard in times of armed conflict. See Henckaerts 2008, p 263; Sassòli 2007, p 389. 41 Hampson correctly notes that ‘[i]n some areas, human rights protection may go further than that provided under the law of armed conflicts. Thus, the ECHR’s standard with regard to the level of force used, no more than is absolutely necessary, suggests a more rigorous standard than mere proportionality.’ See Hampson 1992, p 134. For more on the marked difference between necessity in IHL and IHLR, see Ohlin and May 2016, pp 121–139. Also see below footnotes 52 and 53 and accompanying text.

12

Targeting Members of Non-State Armed Groups in NIACs …

331

according to IHL is different from substituting those requirements with those of IHL under the guise of interpretation. A better approach for the interpretation of IHRL in light of IHL in the context of the right to life—and particularly regarding the use of lethal force against persons— is to harmonize them (to the extent possible). This would entail not only resorting to an interpretation of the words of the provisions (such as interpreting the word ‘arbitrary’ in the ICCPR as discussed before), but also by harmonizing one or more of the criteria used to assess the lawfulness of the use of lethal force under IHRL (precaution, necessity and proportionality) with IHL. An example in that regard is the reading down of the necessity requirement under IHRL in light of IHL, which would avoid the confusion created when attempting to interpret the word ‘arbitrary’ in light of IHL. The vagueness of the term ‘arbitrary’ could appear to offer the interpreter a significant margin of discretion in the interpretation, which would be significantly reduced when employing more discernable terms such as ‘necessity’ and ‘proportionality’. As mentioned before, however, ‘arbitrary’ is nothing less than a lack of conformity with the IHRL notions of precaution, necessity and proportionality. One of the advantages of this method is that it allows for the interpretation of ‘closed’ provisions, i.e. those that list the grounds that would make lawful to limit a right, such as the right to life as enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). This list is considered to be an obstacle and even a problem when interpreting the provision in light of IHL.42 The Grand Chamber of the European Court of Human Rights (ECtHR) in Hassan v UK used the principle of systemic integration when it examined the relationship between IHL and IHRL in a case on arbitrary detention pursuant to Article 5 of the ECHR which, similarly to Article 2 on the right to life, is a closed provision. The facts of the case stemmed from the detention of an Iraqi national by UK forces in the context of the armed conflict in Iraq. The Court resorted to, inter alia, the principle of systemic integration to read down the requirements of Article 5 in light of the third and fourth Geneva Conventions that respectively allow the detention of prisoners of wars and civilians posing a threat to security without the intention of bringing charges within a reasonable amount of time (a practice prohibited by the ECHR). The Court did not displace Article 5 with the relevant IHL rules. In fact, when discussing the regular review of detention that a State is required to conduct under the Geneva Conventions, the court stipulated a safeguard that is not mentioned in the Geneva Conventions. It required that a ‘first review

42 Hampson 2008, p 564. See also Heyns et al. 2016, p 821. Similarly, but talking about Article 5 and not Article 2 on the right to life, Justice Leggatt found that ‘[u]nlike Article 9(1) of the ICCPR, however, Article 5(1) of the Convention is much more specific and prohibits arrest or detention “save in the following cases” which are then exhaustively defined. Given the specificity of Article 5, there is little scope for lex specialis to operate as a principle of interpretation.’ See High Court of Justice, Serdar Mohamed v. Ministry of Defence, Judgment, 2 May 2014, Case No: HQ12X03367, para 291.

332

N. I. Diab

should take place shortly after the person is taken into detention’.43 The ‘shortly after’ requirement is a dilution of the IHRL requirement of being ‘promptly’ brought before a judge after being taken into detention enshrined in Article 5.3 of the ECHR as it provides more flexibility in terms of time-frame for a state to conduct a judicial review. Nevertheless, the Court went too far in diluting the requirements of Article 5 and it was criticized for doing so.44 Many of the safeguards against arbitrary detention were dropped without explanation by the Court.45

12.4

Targeting of Members of Armed Groups Under IHRL

The jurisprudence of human rights judicial and quasi-judicial organs has settled on the notion that lethal force can be contemplated only in the event of an imminent danger of death.46 The ‘key issue’ for a human rights body is, in fact, the nature of the threat.47 As discussed in Sect. 12.2, what fundamentally matters to determine the lawfulness of the use of lethal force under IHRL is not, primarily, the status of the individual but his or her conduct and hence the threat that the person poses. Nevertheless, this section will show that the status of the person targeted and the overall circumstances in which the force was used (i.e. armed conflict) are not totally irrelevant in the determination of the lawfulness of the use of lethal force against members of armed groups. Therefore, it will attempt to identify the type of ‘threat’ a person would pose by virtue of his or her membership to a NSAG under an IHRL paradigm. More specifically, the analysis will seek to identify the way in which a human rights body should assess the threat emanating from a member of such an armed group during an armed conflict. There is limited case-law on the use of lethal force against fighters of NSAG in NIACs48 and the approach of human rights bodies in that regard is unsatisfactory. The Inter-American Human Rights Commission and Court have looked into cases concerning the use lethal force in times of armed conflict against fighters.49 Nevertheless, the reliance on the lex specialis principle by these institutions renders their approach unsatisfactory to see how the lawfulness of the use of force can be evaluated against a ‘pure’ IHRL background. Similarly, the African Commission on

43

Hassan v. United Kingdom, above n 37, para 106 (emphasis added). See Fachathaler 2016; Milanović 2014 and Borelli 2015, pp 282–286. 45 Fachathaler 2016, pp 352–353. 46 Gaggioli 2013, p 342. 47 Hampson 2015, p 152. 48 Sassòli and Olson 2008, p 612. 49 Tabak 2014. Also, see one of the latest decided cases on use of lethal force against NSAG in a NIAC in 2015: IACtHR, Cruz Sanchez and others v. Peru, Judgment, 17 April 2015, paras 276– 279. 44

12

Targeting Members of Non-State Armed Groups in NIACs …

333

Human and Peoples’ Rights in its General Comment on the right to life clearly stated that the arbitrariness standard ‘is to be determined by reference to international humanitarian law’, hence ‘[a]ny violation of international humanitarian law resulting in death, including war crimes, will be an arbitrary deprivation of life.’50 The UN Human Rights Committee seems to have determined, in some instances, the lawfulness of the use of lethal force in times of armed conflict under the ICCPR in accordance with IHL.51 However, the Human Rights Committee’s General Comment on the right to life adopted in 2018 appears to be less clear cut by stating that a use of force that is consistent with IHL is ‘in general’ not arbitrary.52 A previous draft of the General Comment referred to ‘in principle’ instead of ‘in general’.53 The change was seemingly made following criticisms by experts of the use of ‘in principle’, which the experts rightly argued that it ‘foreclose[s] the possibility that human rights law imposes its own restraints on the conduct of hostilities, prohibiting arbitrary deprivations of life not prohibited by other rules of international law.’54 In contrast, the jurisprudence of the ECtHR will be of valuable guidance in this sense, particularly in those cases stemming from the conflict between Russia and Chechen armed groups—especially in the Isayeva and Isayeva, Yusupova and Bazayeva cases.55 Both cases shed light on how a human rights court would assess the State’s actions, and particularly its use of lethal force, during an armed conflict against a human rights background. Such case-law would thus assist in seeing how a human rights body would factor in the overall circumstances stemming from an armed conflict and from the nature of the threat posed by a member of NSAG in evaluating the lawfulness of the use of force. The Court carried out its analysis according to IHLR and at no point did it state or imply that it would judge the facts against a background other than HRL as enshrined in the ECHR.56 In fact in

50

African Commission on Human and Peoples’ Rights (2015) para 32. ‘The State party should revisit its position regarding legal justifications for the use of deadly force through drone attacks. It should: (a) Ensure that any use of armed drones complies fully with its obligations under Article 6 of the Covenant, including, in particular, with respect to the principles of precaution, distinction and proportionality in the context of an armed conflict’. See UN Human Rights Committee 2014, para 9. 52 UN Human Rights Committee 2018, para 64. 53 UN Human Rights Committee 2017, para 67. 54 Haque 2017a, p 2. Also see Haque 2017b. 55 ECtHR, Isayeva, Yusupova and Bazayeva v. Russia, Judgment, 24 February 2005, Applications nos. 57947/00, 57948/00 and 57949/00 (Isayeva, Yusupova and Bazayeva v. Russia); and ECtHR, Isayeva v. Russia, Judgment, 24 February 2005, Application no. 57950/00 (Isayeva v. Russia). 56 Some authors contend that the Court has referred, implicitly or unintentionally, on an IHL analysis. Quénivet and Tamura believe that it has referred to IHL. See Quénivet 2008, p 341; Tamura 2011, p 139. In contrast, Otto and Abresch disagree. See Otto 2012, p 422; Abresch 2005, p 736. In fact, in the Isayeva cases the applicants were not families of insurgents killed but those of civilians that were present in areas of hostilities. The Court’s analysis of the right to life of those civilians and not the Chechen fighters might have confused some authors and its use of the terms ‘civilians’ might have led them to believe that the Court used an IHL paradigm and excluded ‘any 51

334

N. I. Diab

Isayeva it stated that since ‘[n]o martial law and no state of emergency has been declared in Chechnya, and no derogation has been made under Article 15 of the Convention (see § 133). The operation in question therefore has to be judged against a normal legal background.’57 In Isayeva, Russian armed forces had used heavy artillery on a village where both armed groups and civilians were present. Similarly, the Isayeva, Yusupova and Bazayeva v. Russia stemmed from clashes that pitted the Russian military against Chechen armed groups. On 29 October 1999, Russian military planes opened fire with missiles on what was supposed to be a humanitarian corridor where the applicants happened to be. Russia claimed that the attack targeted a convoy carrying fighters and ammunition. The Court found in both Isayeva cases that the ‘situation that existed in Chechnya at the relevant time called for exceptional measure on behalf of the state in order to regain control over the Republic and to suppress the illegal armed insurgency’.58 According to the Court, such measures could include the ‘employment of military aviation equipped with heavy combat weapons.’59 Although in Isayeva, Yusupova and Bazayeva the Court found inconclusive evidence that the planes were subject to an attack,60 it decided to ‘assume’ that the use of lethal force by Russia was pursuing the purpose set out in Article 2 of the ECHR, namely, to protect persons from unlawful violence.61 To reach this conclusion, it relied on the ‘context of the conflict in Chechnya at the relevant time’ and found that the ‘military reasonably considered that there was an attack or a risk of attack from illegal insurgents’. It thus assumed that Russia’s actions fell under one of the exceptions provided for under Article 2.62 What is important to note is that the Court referred to the general context (i.e. the security situation in Chechnya) and to the risk posed by a non-State armed group to accept, at the first stage of its analysis, the possibility of using lethal force, including the deployment of heavy weapons, in accordance with Article 2. Hence, it moved away from a stricto sensu analysis of the threat under HRL that is limited to the particular circumstances of the use of force by allowing the overall circumstances of

consideration of the right to life of armed insurgents.’ See Tamura 2011, p 139. See also Quénivet 2008, p 344. Nevertheless, as mentioned before, the Court does not seem to use IHL even ab silencio. According to Abresch, the Court does not appear to use the word civilian as ‘a term of art’ as it has provided the ‘same rule for battles as for arrests, and for civil wars as for riots.’ See Abresch 2005, p 759. Furthermore, the Court did not reason on the basis that Russia was targeting members of NSAGs. Hence, it could not have negated the right to life of individuals whose presence had not been established in the case at hand. 57 Isayeva v. Russia, above n 55, para 191. 58 Isayeva, Yusupova and Bazayeva v. Russia, above n 55, para 178; Isayeva v. Russia, above n 55, para 180. 59 Isayeva, Yusupova and Bazayeva v. Russia, above n 55, para 178. 60 Ibid., paras 178–181. 61 Ibid., paras 181–182. 62 Ibid., para 181.

12

Targeting Members of Non-State Armed Groups in NIACs …

335

the armed conflict to feed into its assessment. Thus, the Court examined whether the lethal force pursued was no more than absolutely necessary for achieving that purpose (i.e. protecting persons pursuant to Article 2 of the ECHR).63 Similarly, in Özkan and Others, a case stemming from clashes between the Kurdistan Workers’ Party (PKK) and Turkish security forces, when assessing the State’s use of lethal force when it was established that the State’s forces had been attacked, the Court found that the ‘tactical reaction’ of the Turkish forces against the PKK did not violate Article 2 of the ECHR,64 despite the fact that it did not involve weapons used in normal law-enforcement operations. Rather, the actions of the Turkish forces consisted of ‘intensive firing, including the use of RPG-7 missiles and various grenades’.65 The Court reached the conclusion that the use of lethal force met the proportionality and necessity tests, and was thus lawful, in light of the fact that it was a response to an attack and that civilian casualties were not significant (one civilian was injured as a result of the use of lethal force, but none died).66 The Court’s conclusion stems from a broad assessment of the facts that did not go into the details surrounding the use of lethal force. For example, the Court did not make an evaluation of the actual threat emanating from the PKK at the time and the actual target of the use of lethal force that involved heavy weapons. It simply accepted that the use of lethal force ‘targeted at believed points of fire’.67 The conflict between the PKK and Turkey and its intensity in the region where the use of lethal force took place were circumstances that weighed heavily in the Court’s conclusion as to its lawfulness. Such circumstances allowed the Court to interpret more liberally the concept of absolute necessity.68 In other instances, the Court has been more explicit as to the threat posed by individuals of NSAGs by virtue of their membership: it has looked at membership as a source of threat. In the Finogenov and others case, which concerned the conduct of the rescue operation carried out by Russian armed officials in October 2002, following the taking of hostages by Chechen terrorists in a Moscow theatre, the Court stated that: the situation … was quite different: the threat posed by the terrorists was real and very serious. The authorities knew that many of the terrorists had earlier participated in armed resistance to the Russian troops in Chechnya; that they were well-trained, well-armed and dedicated to their cause … that the explosion of the devices installed in the main

Ibid., para 199. (It should also be noted that the Court did not eventually find that the use of lethal force was lawful. Rather, the Court found, in the subsequent stages of its analysis, that the attack violated Article 2 of the Convention because the operation was not ‘planned and executed’ with the requisite care for the lives of the civilian population.) 64 Ibid. 65 Ibid., para 298. 66 Ibid., paras 305–306. 67 Ibid., para 103. 68 Melzer 2008, p 393. 63

336

N. I. Diab

auditorium would probably have killed all of the hostages; and that the terrorists were prepared to detonate those devices if their demands were not met.69

In a sense, according to the Court, an individual’s association with a NSAG is evidence of a threat, and all the more so if it is shown that the individual is integrated in its military wing.70 Nevertheless, it is hardly conceivable that a human rights body would ever accept that the mere evidence of a threat justifies the use of lethal force. A human rights body would take that evidence into account in its overall evaluation of the threat but not at the exclusion of other elements of proof. For example, in the McCann case, the Court found that the use of lethal force by British SAS agents against Irish Republican Army (IRA) operatives was not disproportionate. In assessing the threat, the Court noted that the SAS agents ‘were confronted by an active service unit of the IRA.’71 Nevertheless, the threat emanating from membership was only one of many elements that the Court took into account to determine that lethal force was not used disproportionately.72 Eventually, the Court found that the right to life had been violated, but on the basis that the operation was not planned and controlled by the authorities so as to minimize, to the greatest extent possible, recourse to lethal force.73 In conclusion, the status of a person is not irrelevant in the legal framework on the use of lethal force in IHRL. In a sense, human rights law is not constrained as much as it is generally believed into a microcosmic approach to targeting that assesses the threat only in relation to the conduct of the individual taken at the moment when the use of force took place. Human rights law’s flexibility is capable of recognizing the group-based concept that underlines a combatant status.74 While the status of fighters does not have legal consequences per se under IHRL, it has a bearing on the decision to use lethal force. As shown in the abovementioned case law, membership in a NSAG is evidence of a threat and is thus considered in the overall assessment of the threat posed by a person. Furthermore, the armed conflict context adds another layer of gravity to the threat assessment, as indicated in the above analysis of the ECHR’s case law.

69 ECtHR, Finogenov and others v Russia, Judgment, 20 December 2011, Application No. 18299/03 and 27311/03, para 220 (emphasis added). 70 Hakimi 2012, pp 1399–1400. 71 McCann and Others v. United Kingdom, above n 13, para 193. 72 Ibid., para 193 (‘[t]he IRA, judged by its actions in the past, had demonstrated a disregard for human life, including that of its own members. Secondly, the authorities had had prior warning of the impending terrorist action and thus had ample opportunity to plan their reaction and, in co-ordination with the local Gibraltar authorities, to take measures to foil the attack and arrest the suspects. Inevitably, however, the security authorities could not have been in possession of the full facts and were obliged to formulate their policies on the basis of incomplete hypotheses.’) 73 Ibid., para 193 and paras 202–214. 74 See Watkin 2005, p 147 (‘[a]n individualist approach to targeting highlights the tension that arises between a human rights-based concentration on the individual and the traditional group based concept of the combatant.’)

12

Targeting Members of Non-State Armed Groups in NIACs …

337

The degree of threat impacts the proportionality and necessity analysis. The greater the threat, the more likely that lethal force will be considered proportionate. However, membership in a NSAG, i.e. their status, is one among other factors taken into account. This is also flexible: two members of two different NSAGs will not necessarily pose the same degree of threat simply by virtue of their membership and their fighting function within the armed group (the ‘strength’ of an armed group will be taken into account). For this reason, human rights bodies would assess the past behavior of the NSAG in order to evaluate the threat. This is what the Court did in the Finogenov and others case. By highlighting the threat emanating from members of the Chechen armed group by virtue of that group’s past behavior, the Court demonstrated that they posed a substantial threat at the time of the events in question. There is no reason for the structure of Article 2 of the ECHR to preclude adopting the same logic when interpreting provisions enshrining the right to life under other human rights treaties. As explained above, the use of lethal force by law-enforcement agents is generally assessed according to the precaution, necessity and proportionality requirements. Hence, a deprivation of life that violates Article 2 of the ECHR would also fall afoul of the arbitrariness standard in other human rights treaties.75

12.5

Targeting of Members of Non-State Armed Groups in NIACs: A Conduct-Based Approach to Determine Membership in NSAG?

The law on targeting persons in NIACs lacks the clarity of its counterpart in IACs. Indeed, unlike IACs, there is no clear express category of ‘combatants’ recognized in the treaty provisions governing NIACS, namely Article 3 common to the Geneva Conventions and Additional Protocol II (AP II). Furthermore, those norms do not provide a clear definition of a civilian either. Nevertheless, while not recognized explicitly in law, there is a category of people in NIACs—fighters—that lose their protection from attack regardless of whether they participate in hostilities at the moment of targeting. This section will identify how, as a result of this legal ambiguity in NIACs, conduct is a decisive criterion to determine membership in a NSAG. This is in contrast to IACs where the ‘combatant’ category is legally recognized and stems from the person’s membership in the State’s armed forces.

75

Melzer 2008, p 120 (‘In sum, it appears reasonable to conclude that deprivations of life that would be permissible under Article 2 ECHR could not be viewed as ‘arbitrary’ within the meaning of Article 6 ICCPR, and that deprivations of life permitted by Article 6 ICCPR would not be contrary to Article 2(2) ECHR.’)

338

N. I. Diab

Despite the above-mentioned lack of clarity regarding status, the wording of NIAC treaty-law supports the conclusion that there is a separate category of people that is not immune from attack regardless of their activities at the time of targeting. Article 3 common to the Geneva Conventions protects ‘persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed “hors de combat” by sickness, wounds, detention, or any other cause.’ The wording of Article 3 indicates that, for members of armed forces, protection is not dependent on whether they are directly participating in hostilities or not.76 In other words, ‘they must take additional steps and actively disengage’ to recover protection from attack.77 Furthermore, the provision’s wording does not draw a distinction between State armed forces and NSAGs.78 Also, Article 13 of Additional Protocol II prohibits making the civilian population the object of an attack.79 Finally, the absence of such category would put considerable strain on one of the most fundamental principles of IHL, i.e. the principle of distinction.80 The International Committee of the Red Cross (ICRC) supports this conclusion. The ICRC’s study on customary IHL recognizes that not everyone is regarded as a civilian in NIACs. Rule 5, which applies to NIACs, states that “civilians are persons who are not members of the armed forces”.81 In fact, as shown by Melzer, State practice seems to support that there are persons that can be targeted even when they do not engage in hostile conduct at the time of targeting.82 Furthermore, the ICRC’s commentary to AP II also supports this conclusion by recognizing that those belonging to armed forces and NSAGs may be attacked at any time.83 Such interpretation is supported by the majority of the doctrine.84 Nevertheless, the lack of a formal recognition of such category of persons in the law—in contrast to IACs—has rendered very difficult the task of identifying who can be considered a member of a NSAG and hence a fighter. Such ambiguity gives ‘conduct’ a substantial role as a recognition factor of membership in armed groups in NIACs. In fact, the only instance of clear textual regulation by treaty-law on

76

Melzer 2015, p 308. Sassòli and Olson 2008, p 607. 78 Kleffner 2015, p 439. 79 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, adopted 8 June 1977, UNTS 1125 UNTS 609, entered into force 7 December 1978 (AP II), Article 13. 80 Corn 2013, p 59 (‘The integrity of the target legality framework depends on the recognition of opposing belligerent groups in any armed conflict. This recognition facilitates implementation of the principle of distinction by allowing belligerent forces to segregate those they encounter into two distinct groups’). See also Otto 2012, p 239 (‘it would restrict the opposing party – in most cases the government – to fighting against these fighters only when they are actually fighting and create an imbalance between the parties to the conflict.’) 81 Henckaerts and Doswald-Beck 2005, p 17. 82 Melzer 2015, p 312. 83 ICRC 1987, para 4789. 84 Gaggioli 2018, p 910. 77

12

Targeting Members of Non-State Armed Groups in NIACs …

339

NIACs of loss of protection is conduct-based: civilians’ direct participation in hostilities. It is on the basis of such conduct that the ICRC has attempted to, in effect, define the category of people that are members of armed groups in NIACs that can be targeted at any time.85 The ICRC’s Guidance on Direct Participation in Hostilities holds that ‘members of organized armed groups belonging to a non-state party to an armed conflict cease to be civilians … and lose protection against direct attack, for as long as they assume their continuous combat function.’86 Continuous combat function is nothing more than ‘preparation, execution, or command of acts or operations amounting to direct participation in hostilities.’87 The ICRC further identified a three-step approach in order to determine what amounts to direct participation in hostilities.88 The important point about the three-step approach is that, for the act to amount to direct participation in hostilities, there must be a direct link between the act carried out by the individual and the harm, or the person must engage in an operation that directly causes harm.89 Hence, ‘[w]hile the continuous combat function concept may expand the range of conduct that qualifies as such a threat, it is nonetheless a conduct-based targeting equation.’90 Other attempts to define membership in a NSAG, for the purposes of targeting, have also concentrated on conduct. For example, Louise Doswald-Beck supports ‘the notion that armed forces are targetable, without the need for imminence of danger, provided that rebel “armed forces” or “armed groups” are narrowly defined to include only those members who regularly do the actual fighting.’91 Kleffner aptly described the conduct dimension behind the recognition of membership in armed groups in NIACs when he contrasted the law on targeting in NIACs to IACs, by stating that ‘[t]he assessment of whether or not a person enjoys protection under Common Article 3 is conduct-based, in as much as that protection attaches to the

85 ICRC 2009. It should be noted that this chapter does not necessarily adopt the position of the Guidance. It is mentioned here as an example of an attempt to identify membership in NSAGs on a primarily conduct basis. In fact, the findings of the Guidance were not uncontroversial, but came under fierce criticisms from scholars. More particularly, the concept of continuous combat function was considered an ‘inequity in the law’, because of the imbalance it creates between State armed forces and NSAGs. In that regard, see Schmitt 2012, p 133. 86 ICRC 2009, p 70. 87 Ibid., p 34. 88 See ibid., p 46 (‘In order to qualify as direct participation in hostilities, a specific act must meet the following cumulative criteria: 1. The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and 2. There must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and 3. The act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus)’). 89 Akande 2010, p 187 (emphasis added). 90 Corn 2013, p 59. 91 Doswald-Beck 2006, p 891 (emphasis added).

340

N. I. Diab

actual activities of a person, or, to be more precise, his or her abstaining from certain activities, namely those that amount to active participation in the hostilities.’92 Furthermore, the notion of ‘conduct’ that can pose a threat to the adverse party goes to the very heart of the constituent element of a NIAC. In fact, there is a threshold of organization that a NSAG should reach for a NIAC to even exist. The armed group should be ‘capable of engaging in sustained armed violence.’93 This criterion is essential to distinguish NIACs from internal disturbances. The potential threat that a member of such a NSAG can pose is substantial. In fact, the criterion of ‘organized armed group’ implies military training of members and availability of lethal weapons.94 Furthermore, on a group-level, organization implies the capacity to plan and carry out concerted military action.95 Hence, for a NSAG to reach such threshold of organization entails that individual fighting members have a function that puts them in a position to engage in threatening conduct. It is that conduct that poses a threat that underlies the recognition of the category of members of NSAGs. In this regard, Watkin writes that: Attempting to limit attacks based solely on individual conduct does not take fully into account the nature of modern warfare. While the lone actor armed with a weapon of mass destruction is a threat to society, it is the danger posed by well resourced, organized, and technologically advanced groups with global reach such as al Qaeda that make hostilities with private non-state actors “warlike” in nature. As a result, the non-state actors may pose the same type of group threat as members of armed forces who have the status of combatants.96

Military necessity would prohibit the targeting of persons whose ‘conduct’ does not pose a threat to the adverse party. Hence, it is such conduct that is a source of the threat which separates civilians from fighters in terms of lawfulness of targeting. The ‘threat’ is not measured only by past conduct (e.g. having taken part in hostile activities). Taking up a fighting function in a NSAG entails that the individual can engage in threatening conduct. In short, formal membership in the State’s armed forces alone grants a person the status of combatant in an IAC. In contrast, in NIACs, the (de facto) status derives from the potentially threatening conduct of a person within an organized NSAG. Nevertheless, basing status on the ‘conduct’ of the individual does not mean that the law of NIACs adheres to a narrow paradigm of conduct-based targeting similar to that of civilians who lose protection only when they directly participate in hostilities. For example, the continuous combat function is a status-like function

92

Kleffner 2015, p 435. ICRC 2016, para 534. 94 ICTY, Prosecutor v. Haradinaj et al., Trial Judgment, 3 April 2008, IT-04-84-T, para 64. See also ICTY, The Prosecutor v. Fatmir Limaj et al., Trial Judgment, 30 November 2005, IT-03-66-T, paras 119–122. 95 ICRC 1987, para 1352. 96 Watkin 2005, pp 147–148 (emphasis added). 93

12

Targeting Members of Non-State Armed Groups in NIACs …

341

that waives protection against attack independently of whether, at the moment of being attacked, the person is carrying out hostile acts. Indeed, according to the ICRC, a person loses protection from attack even before having committed a hostile act if he or she was recruited, trained and equipped in the NSAG.97 In other words, in NIACs, conduct ‘is the key “threat recognition” factor resulting in status.’98 Hence fighters can be targeted lawfully regardless of the activity they carry out at the time of targeting, as long as IHL applies to the situation.99 By basing status on the threatening conduct of a person, the law of targeting in NIACs provides a useful entry point to the use of lethal force under IHRL that is primarily conduct-based.

12.6

Towards a Status-Based Use of Lethal Force Under IHRL in Times of Armed Conflict

While in human rights law the status of a person is factored into the assessment of the degree of the threat the person’s conduct poses, it is the reverse in IHL of NIACs: it is the conduct of an individual that represents a threat and confers on him the status of a fighter. However, IHRL and IHL meet in treating the threat that a person can pose as a criterion in determining the lawfulness of the use of lethal force. Of course, such criterion plays a varying degree of importance between IHL and IHRL. While it can be decisive for IHL, for IHRL it is one among other factors to be taken into account when evaluating the lawfulness of the use of lethal force. In that regard, the principle of necessity under IHL can relax the principle of necessity under IHRL, as mentioned in Sect. 12.2. Nevertheless, an export en bloc of the principle of necessity under IHL to IHRL—which would allow the same latitude of targeting fighters under IHRL—would be flawed and would overstretch IHRL beyond what a normal exercise of interpretation commands. This section identifies another entry point to interpreting IHRL according to IHL. It uses the criterion of threat posed by a person—that is common to both IHL and IHRL—to interpret IHRL in light of IHL with regards to targeting members of NSAGs in NIACs. Hence, the threat that a fighter poses under an IHRL lens can be widened when interpreting it in light of IHL. Status in NIACs is based on identifying the threatening conduct of a person and, depending on the facts, it can be 97

ICRC 2009, p 34. Corn 2013, p 69 (‘Thus, while conduct is the key analytical indicator of status, this does not equate to conduct-based targeting authority—the type of authority utilized to respond to a genuine DPH situation’.) 99 Even when it is established that a person is a lawful target it is not unanimous that the use of lethal force is lawful under IHL when lesser means could have been employed to neutralize the person. See for example Goodman 2013 and ICRC 2009, pp 78–81. However, such position is far from unanimous. For a rebuke of such position see Schmitt 2010. Furthermore, state practice does not seem to support that conclusion. 98

342

N. I. Diab

inherent to the person at all times during the armed conflict. In a sense, the level of threat can be wedded to the status of the individual regardless of his activities at the time of targeting. Consequently, the threat under IHRL (that is conduct-dependent at the time of targeting), when interpreted in light of IHL, can be widened even when the fighter is not engaged in hostile acts. There is no doubt that a human rights body would find that a member of a NSAG in a NIAC can pose a substantial threat to life. In fact, as mentioned in the previous section, for a NIAC to exist, the NSAG involved should reach a high degree of organization.100 This necessarily means that any fighter can be presumed to carry the intention and capacity to use lethal force at any time. The individual (i.e. the threat posed by the targeted person) and the NSAG (i.e. the threat posed by the group to which the fighter belongs) are among the factors that human rights bodies assess in order to evaluate the degree of the threat when deciding on the lawfulness of the use of lethal force. Furthermore, as was mentioned in the previous section, threatening conduct in IHL takes into account the causal proximity between the relevant act and the harm inflicted.101 Such proximity between the act and the harm is akin, although not identical, to the stricter IHRL’s imminence requirement. This ensures that IHRL’s criterion requiring that the threat be imminent is preserved (although read down through the exercise of systemic interpretation). This interpretation would not result in importing an alien notion into IHRL. First, the status of a person is not irrelevant in assessing the threat posed by that person under IHRL. Furthermore, as mentioned in Sect. 12.3, IHRL is flexible enough to look beyond the individual’s conduct only, and to factor in the threat posed by that individual in light of the NSAG in question and the context (i.e. the armed conflict). Second, the status of a fighter under the law of NIACs is built on the (potentially threatening) conduct of the person—a fundamental criterion in assessing the threat under IHRL. Third, IHL and relevant provisions on the right to life in human rights treaties are couched in restrictive terms rather than permissive. This key aspect makes it a suitable hook to interpret IHRL in light of IHL. Such similarity between both branches renders IHL of NIAC in that regard a ‘relevant’ rule to interpret IHRL in the sense of the systemic method of interpretation enshrined in Article 31.3c of the VCLT. Another, albeit similar, approach is to widen or narrow the threat on the basis of the conduct itself (as opposed to the status, as argued in this chapter). This possibility has been contemplated briefly by Françoise Hampson. According to Hampson, direct participation in hostilities ‘is not the same as the human rights test based on the threat posed by the behavior of the individual at the time, but it is at least based on behavior. It might be possible for human rights bodies to accommodate themselves to that slight widening of the concept of threat.’102

100 101 102

For more on the threshold of NIACs, see Cullen 2010, pp 122–133. See above n 15 and accompanying text. Hampson 2011, p 204.

12

Targeting Members of Non-State Armed Groups in NIACs …

343

It is important to note that the idea is not, again, to export en bloc the notion of status under IHL into IHRL and render any fighter lawfully targetable under IHRL. Rather, the interpretation of IHRL in light of IHL, as espoused above, aims at relaxing the rules for the use lethal force under IHRL in times of NIACs. Thus, it renders fighters lawfully targetable with lethal force in situations in which they would not have been so had IHRL not been interpreted in light of IHL. The need for such an interpretation stems from the fact that, as indicated in Sect. 12.2, IHL and IHRL do not always lead to similar results—unlike what some have argued.103 Such a widening of the threat impacts the proportionality and necessity analysis under IHRL. The greater the threat under IHRL, the more likely that the use of lethal force will meet the proportionality analysis. Furthermore, a greater threat would also bring the use of lethal force within the confines of acts necessary to achieve a legitimate aim under IHRL. However, there will be situations where, even when the rules on the use of lethal force are relaxed by resorting to the interpretation described above, the killing of a member of a NSAG during a NIAC might still fall afoul of IHRL without necessarily violating IHL. Indeed, there will always be limits to convergence of these two separate branches of law. On one end of the spectrum, there will be situations when the threat can be conflated under both branches of law. This would be the scenario of a fighter engaging in hostilities on a battlefield against the States’ armed forces. In that case, the use of lethal force is likely to be lawful under human rights law without resorting to IHL.104 The threat posed by the fighter is great enough to justify the use of lethal force. This is all the more so given the impossibility to resort to arrest.105 This was the case in Özkan when Turkish forces used lethal force during active combat against the PPK, as described in Sect. 12.4. On the other end of the spectrum, there can be instances of fighters carrying out activities not related to the conflict, while IHL still applies. In such cases, the interpretation of IHRL in light of IHL will not suffice to render the threat emanating from that fighter great enough to allow the use of lethal force before resorting to other means (e.g. to attempt to arrest him). The threat posed by a fighter of a NSAG will be interpreted in light of IHL in situations that differ in range on the abovementioned spectrum. In this case, by 103 Melzer argues that applying IHRL to armed conflicts situations would not lead to different conclusions than IHL. Also, he states that ‘in identical circumstances, the standard of ‘military necessity’ under IHL corresponds to the standard of ‘absolute necessity’ under human rights law’. See Melzer 2008, pp 392–393. The author disagrees with this finding. The case-law of the ECtHR might have encouraged such findings but doubts remain nevertheless over whether the findings in both branches can be aligned in all circumstances when lethal force is used, especially in situations outside the active battlefield zone. For example, it is highly doubtful that a human rights body would be willing to accept that lethal force can be used against a person recruiting and training for a specific military operation. However, according to the ICRC, such acts amount to direct participation in hostilities under IHL and waives the protection against attack for that person. See ICRC 2009, p 53. 104 Sassòli and Olson 2008, p 613. 105 Ibid.

344

N. I. Diab

factoring in the threat stemming from his membership in an armed group that has the capacity to inflict lethal harm, the threat posed by the individual will be interpreted by a human rights body in light of IHL, and it will be considered a greater threat than it would have had this interpretation not taken place. This interpretation should relax the requirements for the use of lethal force under IHRL; but a plenitude of other considerations would, or at least should, nevertheless be taken into consideration by a human rights body in order to eventually decide whether lethal force was lawful under IHRL or not. Ultimately, this pronouncement will depend on the facts of each case and its surrounding circumstances. One of the consequences of this interpretation is that it is more likely to create a presumption that a person (a fighter of a NSAG under IHL) is more likely to resort to hostile behavior in a NIAC—and hence poses a serious risk to life and limb—than would have been the case had IHRL not been interpreted in light of IHL as suggested here. This would also expand the temporal scope during which lethal force can be used. This could bring (depending on the facts of the situation) some preparatory acts of a fighter (i.e. before he becomes an imminent lethal risk) within the time-frame during which lethal force can be used under IHRL. As seen in the first section, the decision to use lethal force is taken within the frame of seconds and not hours.106 This interpretation would widen this tight time-frame by bringing certain IHL concepts into IHRL as described above. This technique of interpreting IHRL in light of IHL does mean that the closer the situation is to the zone of active hostilities, the more IHL is predominant, and the further a situation is from the zone of active hostilities, the more IHRL is applicable. This interpretation of the relationship between IHL and IHRL has been advanced not only by advocates of IHL’s lex specialis status in times of armed conflict, but also by one of its critics.107 There is no reason why one legal framework would apply more than the other if both are applicable to the same situation,108 and as discussed in Sect. 12.3, both IHL and IHRL already apply concurrently in times of armed conflict. Should IHL find it lawful to use lethal force against a fighter, it might still be unlawful under IHRL.

106

See above n 15 and accompanying text. Sassòli and Olson support the lex specialis position and advocate for a position whereby one of the two branches of the law will be the lex specialis depending on the facts of the case. Nevertheless, the branch that is more general remains applicable in the background. See Sassòli and Olson 2008, p 615 (‘Even where human rights prevail as the lex specialis in the context of armed conflict, humanitarian law remains present in the background and relaxes the human rights requirements of proportionality and warning once an attempt to arrest has been made unsuccessfully or is not feasible. By the same token, where humanitarian law prevails, human rights likewise remain present and require that an inquiry be conducted whenever a person has been deliberately killed.’). On the other hand, Nancie Prud’homme provides an excellent critique of the lex specialis principle. She advocates for a harmonization theory between IHL and IHRL. One of the results of such theory is that ‘the closer one is to the combat zone, the more likely will international humanitarian law be the applicable legal framework.’ See Prud’homme 2007, p 391. 108 ICRC 2015, p 13. Unless there is an applicable treaty-clause that states that one branch would apply, wholly or partly, to the detriment of the other. 107

12

Targeting Members of Non-State Armed Groups in NIACs …

345

A disadvantage of the approach offered in this chapter is that the lawfulness of the conduct will vary greatly depending on the facts of the case and this can put soldiers in a situation of constant ambiguity as to the lawfulness of their actions. Such uncertainty can be mitigated by the development of guidelines109 by relevant stakeholders similar to the ICRC’s guidance on direct participation in hostilities (hopefully with much less controversy). Such guidelines would also prove useful to human rights bodies, as soft-law instruments, when adjudicating cases concerning the use of lethal force against members of NSAGs.

12.7

Conclusion

This chapter has offered one practical use for the principle of systemic integration: to bring IHL and IHRL closer on the very issue on which they were supposed to be diametrically opposed. Two aspects of IHLR and IHL permitted a certain synergy between them as described and analyzed in this chapter. The first is the flexibility of IHRL in terms of its permissiveness or restrictiveness regarding the use of lethal force depending on the circumstances of each case. Such flexibility would allow for some leeway to permit IHL to ‘fit in.’ The second is the lack of clarity in the law of targeting of persons in NIACs as discussed in Sect. 12.5. In NIACs, status is not derived exclusively from membership as in IACs. Such a lack of clarity has rendered the identification of status dependent on the activities of a person, thus providing a relevant entry point for IHRL. Nevertheless, it remains a policy decision by the interpreter whether to look at IHRL through a purist approach or to attempt to interpret it in accordance with other branches of international law, including IHL. This chapter has argued against human rights bodies ignoring IHL when looking at cases concerning the use of lethal force against persons during an armed conflict. It has submitted that, in such cases, human rights bodies should attempt to interpret IHRL in light of the relevant rules of IHL, without replacing one with the other or distorting any of both branches. The difficulties of attempting to use the principle of systemic integration are, by all means, intellectually and practically challenging. Nevertheless, the way to counter these challenges is not by resorting to the simplistic approach of giving primacy to one branch over another. Thus, the debate moves beyond a policy decision and into legally flawed territory when it is claimed that a human rights body should avoid finding a violation of IHRL in times of armed conflict for an act that is lawful under IHL. An interpretation is flawed when the interpreter intends to align branches of law at all costs, regarding of whether it is legally feasible to do so. The integrity of each branch should be respected and each provision should be

109 The author drew the idea of the development of such guidelines from Sassòli and Olson who touched in greater detail on the development of guidelines that guide armed forces in their use of force. See Sassòli and Olson 2008, p 616.

346

N. I. Diab

interpreted to the extent that its object and purpose are respected. If IHL and IHRL were to be consistent in their assessment of (un)lawfulness of each and every act, there would not be a need for two branches of law. Human rights bodies should not fear the risk of declaring a breach of IHRL for lawful acts of IHL after failing to harmonize the two branches. In such cases, they should not hesitate to pronounce a violation of the right to life under IHRL, even if the use of lethal force was lawful under IHL. In fact, it is not an oddity of international law that an act can be lawful under one branch and unlawful under another. In the words of the International Court of Justice (ICJ): ‘[T]here can be no doubt that, as a general rule, a particular act may be perfectly lawful under one body of legal rules and unlawful under another. Thus it cannot be excluded in principle that an act carried out during an armed conflict and lawful under international humanitarian law can at the same time constitute a violation by the State in question of some other international obligation incumbent upon it.’110

References Abresch W (2005) A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya. European Journal of International Law 16:741–767. African Commission on Human and Peoples’ Rights (2015) General Comment No. 3 on the African Charter on Human and Peoples’ Rights: The Right to Life (Article 4). http://www. achpr.org/instruments/general-comments-right-to-life/. Accessed 12 December 2016. Akande D (2010) Clearing the Fog of War? The ICR’s Interpretive Guidance on Direct Participation in Hostilities. The International and Comparative Law Quarterly 59:180–192. Aughey S, Sari A (2015) Targeting and Detention in Non-International Armed Conflict: Serdar Mohammed and the Limits of Human Rights Convergence. International Law Studies 91:60– 118. Borelli S (2015) The (Mis)-Use of General Principles of Law: Lex Specialis and the Relationship Between International Human Rights Law and the Laws of Armed Conflict. In: Pineschi L (ed) General Principles of Law - The Role of the Judiciary. Springer, Cham, pp 265–293. Corn G (2010) Mixing Apples and Hand Grenades: The Logical Limit of Applying Human Rights Norms to Armed Conflict, International Humanitarian Legal. Journal of International Humanitarian Legal Studies 1:52–94. Corn G (2013) Two Sides of the Combatant Coin: Untangling Direct Participation in Hostilities from Belligerent Status in Non-International Armed Conflicts. In: Banks W (ed) Counterinsurgency Law: New Directions in Asymmetric Warfare. Oxford University Press, Oxford, pp 58–83. Cullen A (2010) The Concept of Non-International Armed Conflict. Cambridge University Press, Cambridge. Doswald-Beck L (2006) The Right to Life in Armed Conflict: Does International Humanitarian Law Provide All the Answers? International Review of the Red Cross 88:881–904. Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (1990), Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. https://www.un.org/ruleoflaw/files/BASICP*3.PDF. Accessed 24 December 2016.

110

ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, 3 February 2015, I.C.J. Reports 2015, p 3, para 474.

12

Targeting Members of Non-State Armed Groups in NIACs …

347

Fachathaler T (2016) Hassan v. United Kingdom and the Interplay Between International Humanitarian Law and Human Rights Law in the Jurisprudence of the European Court of Human Rights. In: Benedek W, Benoît-Rohmer F, Kettemann M, Klaushofer R, Nowak M (eds) European Yearbook on Human Rights. Intersentia, Cambridge, pp 345–356. Gaggioli G (2013) L’influence mutuelle entre les droits de l’homme et le droit international humanitaire à la lumière du droit à la vie. Édition A. Pedone, Paris. Gaggioli G (2018) Targeting Individuals Belonging to an Armed Group. Vanderbilt Journal of Transnational Law 51:901–917. Goodman R (2013) The Power to Kill or Capture Enemy Combatants. The European Journal of International Law 24:819–853. Hakimi M (2012) A Functional Approach to Targeting and Detention. Michigan Law Review 110:1365–420. Hakimi M (2016) Taking Stock of the Law on Targeting, Part I. http://www.ejiltalk.org/takingstock-of-the-law-on-targeting-part-i/. Accessed 12 December 2016. Hampson F (1992) Using International Human Rights Machinery to Enforce the International Law of Armed Conflicts. Military Law and Law of War Review 31:117–147. Hampson F (2008) The relationship between international humanitarian law and human rights law from the perspective of a human rights treaty body. International Review of the Red Cross 90:549–572. Hampson F (2011) Direct Participation in Hostilities and the Interoperability of the Law of Armed Conflict and Human Rights Law. International Law Studies 87:187–213. Hampson F (2015) Can human rights requirements limit the right to use force against legitimate targets under IHL? In: Greppi E (ed) Conduct of Hostilities: the Practice, the Law and the Future. Franco Angeli, Milan, pp 149–154. Haque A (2017a) Untitled Submission to the Human Rights Committee on its General Comment on the Right to Life. https://www.ohchr.org/Documents/HRBodies/CCPR/GCArticle6/ AdilHaque.docx. Accessed 19 December 2018. Haque A (2017b) Aggression, Armed Conflict, and the Right to Life: Does UN Human Rights Get it Right. https://www.justsecurity.org/44040/aggression-armed-conflict-life-human-rightscommittee-right/. Accessed 19 December 2018. Henckaerts JM (2008) Concurrent Application of International Humanitarian Law and Human Rights Law: A Victim Perspective. In: Arnold R, Quénivet N (eds) International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law. Martinus Nijhoff, Leiden, pp 237–267. Henckaerts JM, Doswald-Beck L (2005) Customary International Humanitarian Law Volume 1: Rules. Cambridge University Press, Cambridge. Heyns C, Akande D, Hill-Cawthorne L, Chengeta T (2016) International Legal Framework Regulating the Use of Armed Drones. International & Comparative Law Quarterly 65:791– 827. Hill-Cawthorne L (2014) The Role of Necessity in International Humanitarian and Human Rights Law. Israel Law Review 47:225–251. International Committee of the Red Cross (1987) Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949. Martinus Nijhoff Publishers, Leiden/ Boston. International Committee of the Red Cross (2009) Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law. https://www.icrc.org/eng/ assets/files/other/icrc-002-0990.pdf. Accessed 3 November 2016. International Committee of the Red Cross (2013) Expert Meeting Report, Use of Force in Armed Conflicts: Interplay between the Conduct of Hostilities and Law Enforcement Paradigms. Prepared and edited by Gaggioli G https://www.icrc.org/eng/assets/files/publications/icrc-0024171.pdf. Accessed 2 November 2016. International Committee of the Red Cross (2015) International Humanitarian Law and the Challenges of Contemporary Armed Conflicts. https://www.icrc.org/en/document/

348

N. I. Diab

international-humanitarian-law-and-challenges-contemporary-armed-conflicts. Accessed 14 August 2017. International Committee of the Red Cross (2016) Updated Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. https://ihl-databases.icrc.org/ihl/full/GCi-commentary. Accessed 6 January 2017. International Law Commission (2006) Fragmentation of International Law: Difficulties Arising from Diversification and Expansion of International Law. A/CN.4/L.682. Kleffner J (2015) The Beneficiaries of the Rights Stemming from Common Article 3. In: Clapham A, Gaeta P, Sassòli M (eds) The 1949 Geneva Conventions: A Commentary. Oxford University Press, Oxford, pp 433–447. Lindroos A (2005) Addressing Norm Conflicts in a Fragmented Legal System: The Doctrine of Lex Specialis. Nordic Journal of International Law 74:27. Lubell N (2005) Challenges in Applying Human Rights Law to Armed Conflict. International Review of the Red Cross 87:737–754. McCarthy C (2008) Legal Reasoning and the Applicability of International Human Rights Standards During Military Occupation. In Arnold R, Quénivet N (eds) International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law. Martinus Nijhoff Publishers, Leiden/Boston, pp 121–132. Melzer N (2008) Targeted Killing in International Law. Oxford University Press. Melzer N (2015) The Principle of Distinction Between Civilians and Combatants. In: Clapham A, Gaeta P (eds) The Oxford Handbook of International Law in Armed Conflict. Oxford University Press, Oxford, pp 296–331. Melzer N, Gaggioli G (2015) Conceptual Distinction and Overlaps Between Law Enforcement and the Conduct of Hostilities. In: Gill T, Fleck D (eds) The Handbook of the International Law of Military Operations, 2nd edn. Oxford University Press, Oxford, pp 63–93. Milanović M (2011a) Norm Conflicts, International Humanitarian Law, and Human Rights Law. In: Ben-Naftali O (ed) International Humanitarian Law and International Human Rights Law: Pas de Deux. Oxford University Press, Oxford, pp 96–125. Milanović M (2011b) Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy. Oxford University Press, Oxford. Milanović M (2014) A Few Thoughts on Hassan v. United Kingdom. http://www.ejiltalk.org/afew-thoughts-on-hassan-v-united-kingdom/. Accessed 5 November 2016. Milanović M (2016) The Lost Origins of Lex Specialis: Rethinking the Relationship between Human Rights and International Humanitarian Law. In: Ohlin J (ed) Theoretical Boundaries of Armed Conflict and Human Rights. Cambridge University Press, Cambridge, pp 78–117. Oberleitner G (2015) Human Rights in Armed Conflict: Law, Practice, Policy. Cambridge University Press, Cambridge. Ohlin J, May L (2016) Necessity in International Law. Oxford University Press, Oxford. Otto R (2012) Targeted Killings and International Law: With Special Regard to Human Rights and International Humanitarian Law. Springer-Verlag, Berlin/Heidelberg. Prud’homme N (2007) Lex Specialis: Oversimplifying A More Complex and Multifaceted Relationship? Israel Law Review 40:355–395. Quénivet N (2008) The Right to Life in International Humanitarian Law and Human Rights Law. In: Arnold R, Quénivet N (eds) International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law. Martinus Nijhoff Publishers, Leiden/Boston, pp 331–354. Sassòli M (2007) Le droit international humanitaire, une lex specialis par rapport aux droits humains? In: Auer A, Flückiger A, Hottelier M (eds) Les droits de l’homme et la constitution: études en l’honneur du Professeur Giorgio Malinverni. Schulthess, Geneva, pp 375–395. Sassòli M, Olson L (2008) The Relationship between International Humanitarian and Human Rights Law Where It Matters: Admissible Killing and Internment of Fighters in Non-International Armed Conflicts. International Review of the Red Cross 90:599–627.

12

Targeting Members of Non-State Armed Groups in NIACs …

349

Schmitt M (2010) Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance. Virginia Journal of International Law 50:795–839. Schmitt M (2012) Status of Opposition Fighters in a Non-International Armed Conflict. International Law Studies, 88:119–144. Srivastava S (2016) Nice attack: What it means for fight in Syria, Iraq. CNBC,15 July 2016. http:// www.cnbc.com/2016/07/15/nice-attack-what-it-means-for-fight-in-syria-iraq.html. Accessed 24 December 2016. Tabak H (2014) Armed Conflict and the Inter-American Human Rights System: Application or Interpretation of International Humanitarian Law? In: Jinks E, Maogoto JN, Solomon S (eds) Applying International Humanitarian Law in Judicial and Quasi-Judicial Bodies: International and Domestic Aspects. T.M.C. Asser Press, The Hague, pp 219–256. Tamura E (2011) The Isayeva Cases of the European Court of Human Rights: The Application of International Humanitarian Law and Human Rights Law in Non-International Armed Conflicts. Chinese Journal of International Law 10(1):129–140. UN Economic and Social Council (1989) Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, E/RES/1989/65. https://www.un.org/ ruleoflaw/files/PRINCI*2.PDF. Accessed 24 December 2016. UN General Assembly (1979) United Nations Code of Conduct for Law Enforcement Officials, A/ RES/34/169. https://www.un.org/ruleoflaw/files/CODEOF*1.PDF. Accessed 24 December 2016. UN Human Rights Committee (2014) Concluding observations on the fourth periodic report of the United States of America, CCPR/C/USA/CO/4. UN Human Rights Committee (2017) Draft General comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights, on the right to life. https://www.ohchr. org/Documents/HRBodies/CCPR/GCArticle6/GCArticle6_EN.pdf. Accessed 19 December 2018. UN Human Rights Committee (2018) General comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights, on the right to life, CCPR/C/GC/36. UN Human Rights Council (2014) Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions. A/HRC/26/36. Watkin K (2004) Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict. The American Journal of International Law 98:1–34. Watkin K (2005) Humans in the Cross-Hairs: Targeting, Assassination and Extra-Legal Killing in Contemporary Armed Conflict. In: Wippman D, Evangelista M (eds) New Wars, New Laws? Applying the Laws of War in 21st Century Conflicts. Transnational Publishers, New York, pp 137–179.

Nader I. Diab LL.M is an independent researcher. The views expressed are those of the author alone and do not necessarily reflect the views of any institution.

Part IV

The Emergence of Horizontal Interactions Between NSAs

Chapter 13

Generating Respect for the Law by Non-State Armed Groups: The ICRC’s Role and Activities Anne Quintin and Marie-Louise Tougas

Contents 13.1 Introduction...................................................................................................................... 354 13.2 Basis of the ICRC’s Work with NSAGs ........................................................................ 354 13.2.1 Necessity and Respect for the ICRC’s Neutral, Impartial and Humanitarian Nature ................................................................................................................. 355 13.2.2 Legal Basis of the ICRC’s Engagement on IHL with NSAGs......................... 356 13.3 The ICRC’s Work in Practice: How to Concretely Generate Respect for the Law ...................................................................................................................... 358 13.3.1 Doctrine and Legal Tools................................................................................... 359 13.3.2 Education and Training ...................................................................................... 366 13.3.3 Norms of Restraints............................................................................................ 370 13.4 Contemporary Challenges ............................................................................................... 372 13.4.1 Adapting the Legal Messages Without Lessening the Standards ..................... 372 13.4.2 NSAG’s Practice in Processes of Clarification and Development of the Law .......................................................................................................... 375 13.4.3 Criminalization of Humanitarian Aid ................................................................ 380 13.5 Conclusion ....................................................................................................................... 383 References .................................................................................................................................. 383

Abstract The International Committee of the Red Cross (ICRC) has a long experience working with non-State armed groups (NSAGs) in various contexts with the aim of generating respect for international humanitarian law (IHL) by those groups. This chapter discusses the legal bases for the ICRC’s work in that respect,

A. Quintin (&) ICRC, Geneva, Switzerland e-mail: [email protected] M.-L. Tougas UNSC, Montevideo, Uruguay e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 E. Heffes et al. (eds.), International Humanitarian Law and Non-State Actors, https://doi.org/10.1007/978-94-6265-339-9_13

353

354

A. Quintin and M.-L. Tougas

concrete ways to integrate IHL into NSAGs’ practice, as well as recent developments. Some of the challenges faced by the ICRC in its work with NSAGs, such as how to take into account NSAGs practice into IHL clarification and development processes, and the risk of criminalizing humanitarian action and IHL dissemination activities with NSAGs by overbroad anti-terrorist legislation will also be tackled.











Keywords ICRC ICRC’s mandate Non-State Armed groups International humanitarian law Dissemination Education Training Doctrine Sanction Anti-terrorist legislation Criminalization of humanitarian action

13.1



















Introduction

When discussing the increasing involvement of non-State armed groups (NSAGs) in contemporary armed conflicts, the question of the continued relevance of international humanitarian law (IHL) is often posed. The undeniable IHL violations committed in current conflicts not only tend to shadow the numerous instances of respect for the law but also—and worse—create a general impression that generating respect for IHL has become a lost battle. As the guardian of this legal regime, the International Committee of the Red Cross (ICRC) strives to engage in a dialogue with all belligerents, including NSAGs, precisely with the aim of promoting and ensuring respect for the law. This chapter hence proposes to discuss the work of the ICRC in that field and to explore both the challenges and the opportunities in generating better respect for IHL by NSAGs. More specifically, it will present the basis for the ICRC’s work in that respect, as well as concrete ways to integrate IHL into the practices of NSAGs. Recent developments and projects will also be presented. Finally, some of the challenges faced by the ICRC in its work with NSAGs will also be tackled, including the inclusion of NSAG’s practice within processes that aim at clarifying and developing IHL, the risks of overbroad anti-terrorism legislation which potentially criminalize humanitarian action, and the objectives of dissemination of IHL to armed groups.

13.2

Basis of the ICRC’s Work with NSAGs

This first section will provide an overview of the basis for the ICRC’s engagement with NSAGs on IHL. The necessity of this dialogue, both for operational imperatives and for ensuring respect for the ICRC’s core principles will be highlighted. The legal basis for such work will also be briefly presented.1

1

On this aspect, see Melzer 2016, pp 316–322.

13

Generating Respect for the Law by Non-State Armed Groups …

355

13.2.1 Necessity and Respect for the ICRC’s Neutral, Impartial and Humanitarian Nature The ICRC’s engagement with NSAGs on IHL is sometimes questioned and criticized. For some it is at best a waste of time or, at worst, a way of conferring legitimacy to NSAGs or of teaching them how to fight. Unsurprisingly, the same criticisms are raised in respect of the ICRC’s engagement with States by opposing States. Those criticisms seem to overlook the unique role and mandate of the ICRC and their practical implications. ICRC efforts to engage with all parties, including NSAGs, during non-international armed conflicts (NIACs)—as well as efforts to engage with all States concerned during international armed conflicts (IACs)—are deeply rooted in the institution’s mission to protect the lives and dignity of victims of armed conflict and to prevent suffering by promoting and strengthening IHL, which, if respected, provides indispensable protection to those victims. As a neutral and impartial organization, the ICRC does not take side and does not address the causes of armed conflicts. As an independent organization, it does not depend on, and is not affiliated with, a particular State, group of States, or an international or regional organization such as the United Nations (UN) or the African Union. Concretely, it is crucial that the ICRC engages with all parties to a conflict without distinction. Doing otherwise would not only affect the neutrality and impartiality of the organization, but would also undermine its material capacity to carry out its mandate to protect the lives and dignity of victims of armed conflict and other situation of violence and to provide them with assistance. As a concrete example, for ICRC field personnel to be able to carry out their work, safety guarantees must be obtained from all the parties. Engaging with State armed forces, but also with members of NSAGs is hence essential to make sure they know about and accept the ICRC’s work and mandate so that ICRC teams may be allowed through checkpoints, or so that routes under the control of each party are sufficiently safe for ICRC staff to travel through.2 In NIACs, NSAGs may be the perpetrators of IHL violations, victims of IHL violations, and also the providers of services and goods for the civilian population in areas under their control or influence. Engaging with NSAGs is thus necessary and indeed a core aspect of generating respect for IHL during NIACs, which count for the majority of armed conflicts nowadays. And, to quote Jacques de Maio, ICRC Head of Delegation in Israel and the Occupied Territories, ‘it works (not always, not as well as we want, but it works)’.3

2

This chapter aims to discuss the legal aspects of the ICRC’s work with NSAGs; for the operational issues, see e.g. Terry 2011. 3 See de Maio J (2015) Why is the ICRC holding seminars on the law of war with Hamas? The Jerusalem Post, 7 September 2015. http://www.jpost.com/Opinion/Why-is-the-ICRC-holdingseminars-on-the-law-of-war-with-Hamas-415530. Accessed 5 October 2017.

356

A. Quintin and M.-L. Tougas

13.2.2 Legal Basis of the ICRC’s Engagement on IHL with NSAGs When it comes to IACs, the role of the ICRC is well known and well established in international conventions. Formally enshrined in the 1929 Convention relative to the treatment of prisoners of war,4 especially with respect to the transmission of information on prisoners of war, the ICRC’s role had been discussed and expressed in resolutions of the International Conference of Relief Societies (later the International Conference of the Red Cross and Red Crescent) decades earlier.5 Furthermore, the ICRC did not wait for a formal mandate to be set forth in an international convention to carry out what was deemed required by the circumstances and by its position as a neutral intermediary. Indeed, two ICRC delegates were sent to each side of the Schleswig-Holstein conflict in March 1864, which opposed the Austrian and Prussian forces on one side to the Danish forces on the other side. In other words, the deployment of delegates occurred even before the adoption of the first Geneva Convention,6 with the mandate to, inter alia, ‘examine, on the spot, how the decisions of the Geneva Conference were being, or might be, implemented’.7 Although not as well-known, the ICRC’s engagement on IHL with NSAGs has also been an ongoing endeavour for a long time. Indeed, it can be traced back to Henry Dunant’s attempt to facilitate negotiation between France’s legal government, Paris Communards and European diplomats during the Paris Commune in 1871,8 to its work during the Russian Civil War (1917–1921), the Upper Silesia conflict (1921),9 and the Spanish Civil War (1936–1939),10 to its contact with resistance organizations during the Second World War, and to its activities during African decolonization wars.11 This work was first recognized by the 10th International Conference held in Geneva in 1921,12 before being consecrated into treaty law with the adoption of Common Article 3 of the Geneva Conventions in 1949. Therefore, if these actions were initially based on the ICRC’s own initiative, its role as a neutral intermediary, the need to provide protection and assistance to

4 See Convention relative to the Treatment of Prisoners of War, opened for signature 27 July 1929, 118 L.N.T.S. 343, entered into force 19 June 1931, Articles 78, 86, 87 and 88. 5 Bugnion 2003, pp 417–422, 31, 51. See Chap. 3 of Bugnion’s book for a more detailed historical overview. 6 Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, opened for signature 22 August 1864, 11 L.N.T.S. 440, entered into force 9 August 1907. 7 Bugnion 2003, p 30. 8 Durand 2012, p 61. 9 ICRC 2005. 10 Palmieri 2012, p 1282. 11 On this issue, see Bugnion 2003, pp 244–296. On the ICRC’s offer of services in NIACs, see pp 417–422. 12 Ibid., pp 261–262.

13

Generating Respect for the Law by Non-State Armed Groups …

357

victims, and on resolutions of the International Conference of the Red Cross, the legal bases for the ICRC’s actions in relation to NSAGs are now clearly established in treaty law. Common Article 3 to the Geneva Conventions, which applies to cases ‘of armed conflict not of an international character’, is the primary legal basis for ICRC action in the context of NIACs. It states that ‘[a]n impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict’. This provision hence explicitly recognizes the role of the ICRC in engaging with NSAGs that are parties to an armed conflict. These activities may be varied in nature and include, of course, assistance and protection,13 but also IHL dissemination.14 The same article also establishes that ‘[t]he application of the preceding provisions shall not affect the legal status of the Parties to the conflict’. Therefore, dialogue between the ICRC and NSAGs on IHL does not have an impact on their legal status.15 The ICRC’s role is also recognized in other international legal instruments, the primary of which is the Statutes of the Red Cross and Red Crescent Movement (RCRCM).16 It explicitly recognizes in Article 5 that the role of the ICRC includes: ‘to work for the faithful application of international humanitarian law applicable in armed conflicts and to take cognizance of any complaints based on alleged breaches of that law’ and ‘for the understanding and dissemination of knowledge of international humanitarian law applicable in armed conflicts and to prepare any development thereof’.17 The Statutes have been adopted not only by the components of the RCRCM,18 but also by all States Parties to the Geneva Conventions; as a consequence, although not an international treaty, it is an international instrument binding on States by its nature.19 Through them, States have recognized the ICRC as the ‘guardian of IHL’ and have accepted its role in generating respect for the law. Identifying ways and means to strengthen knowledge and acceptance of IHL by all 13 The work of the ICRC is based on four approaches: Protection, Assistance, Cooperation, and Prevention. For more information about each of these approaches, see e.g. ICRC 2009a, pp 23. 14 On the ICRC’s right of initiative, see Nishat 2015. On the role of the ICRC in ensuring compliance with IHL, see Giladi and Ratner 2015. 15 On Common Article 3, see ICRC 2016c, paras 779–840, 861–869. 16 Statutes of the Red Cross and Red Crescent Movement, adopted by the 25th International Conference, amended in 1995 and 2006. Other important international legal documents includes the Rules of Procedure and Evidence of the ICC, Adopted by the Assembly of States Parties First session, New York, 3–10 September 2002, Official Records ICC-ASP/1/3, Rule 73(4), Rules of Procedure and Evidence, Mechanism for International Criminal Tribunals, MICT/1/Rev.2, 26 September 2016, Rule 10 and the Rules of Procedure and Evidence, Special Tribunal for Lebanon, STL-BD-2009-01-Rev.9, April 2017, Rule 164, which recognize ICRC’s privilege on non-disclosure. 17 Statutes of the Red Cross and Red Crescent Movement, adopted by the 25th International Conference, amended in 1995 and 2006, Articles 5(2)(c) and (2)(g). 18 The Movement is composed of the Red Cross and Red Crescent national societies, the International Federation of Red Cross and Red Crescent Societies (IFRC) and the ICRC. 19 See Bugnion 1995.

358

A. Quintin and M.-L. Tougas

parties to a conflict, as well as to overcome potential challenges in improving respect for the law, is therefore at the core of the ICRC’s mandate. Common Article 3 to the Geneva Conventions and Article 5 of the RCRCM thus establish clear legal bases for the ICRC to engage with all parties to armed conflicts on IHL-related issues, including with NSAGs in the context of a NIAC. However, engaging on IHL with these non-state entities is far from being an easy task. The ICRC strives to remind NSAGs of their IHL obligations, to disseminate the content of those rules among the leadership of NSAGs and to support initiatives in that respect, but there is no guarantee of success. In the end, although they are legally bound by IHL, the decision to respect these rules is theirs. The ICRC’s long experience with NSAGs shows that when it comes to respecting (or not) the rules of IHL many factors come into play, such as ownership and the willingness of the group’s hierarchy, but also the organizational structure of the group.20 Taking these challenges into account, the second part of this chapter will address the ICRC’s practice of engaging with NSAGs on the respect for IHL, including the ICRC’s work concerning the development of doctrine and other legal tools.

13.3

The ICRC’s Work in Practice: How to Concretely Generate Respect for the Law

The work of the ICRC in generating respect for IHL is primarily a preventive one. In ICRC terminology, prevention is defined as measures aimed to avert human suffering by fostering an environment conducive to: (1) respect for the life and dignity of persons affected by armed conflict and other situations of violence; and (2) respect for the ICRC’s work.21

Applying this general approach to the conduct of NSAGs will necessarily mean influencing both their attitude towards the law and their concrete behaviour. This itself requires what the ICRC calls an ‘integration process’, i.e. the ‘transposition of IHL rules into concrete mechanisms or measures to ensure compliance and adopting the means required to achieve this end’.22 Concretely, integrating the law entails addressing not only instruction, but also doctrine and sanctions. This approach was the result of an in-depth study meant to understand the factors that influence the behaviour of combatants. For a long time, the ICRC had focused on classic dissemination of the fundamental rules of IHL to the members of armed groups, i.e. focusing mainly on the presentation of the rules and their interpretation.

20 21 22

On this topic see, among others, Bangerter 2011, pp 353–384. ICRC 2010, p 5. ICRC 2007.

13

Generating Respect for the Law by Non-State Armed Groups …

359

The results of the Roots of Behaviour in War study, published by the ICRC in 2004,23 showed that mere knowledge of the law was insufficient to lead to actual respect in practice.24 In order to influence the behaviour of combatants, the study recommended that three mechanisms be implemented: IHL-compliant training, strict orders, and effective sanctions in case of violations.25 As a consequence, the ICRC developed its ‘integration process’, which has been used for the past twelve years, combining doctrine, education, training and sanctions in order to influence the actual behaviour of NSAGs in the field. A variety of publications summarize the work of the ICRC in relation to sanctions.26 It suffices to recall here that addressing accountability is a necessary part of the ICRC’s dialogue with NSAGs in order to ensure that non-respect of the rules by their members is sanctioned. With this in mind, this section will focus on the work of the ICRC with regard to the integration of IHL into the doctrine and the training systems of NSAGs. Also, it will present some tools the ICRC uses in this respect, before introducing a new study aimed at understanding the norms of restrain that influence the behaviour of armed groups.

13.3.1 Doctrine and Legal Tools The ICRC defines doctrine as all standard principles that guide the action of arms carriers at the strategic, operational and tactical levels, independently of the forms these principles take. It therefore encompasses all directives, policies, procedures, codes of conduct and reference manuals – or their equivalents – on which arms carriers are educated and trained during their careers, giving them a common vocabulary and shaping the decision-making process, tactics and behaviour in operations.27

Influencing the doctrine of armed groups towards the inclusion of IHL rules, therefore, implies understanding the rules and decisions that they choose to adopt. In that respect, the analysis of the codes of conduct developed and accepted by NSAGs is an essential source of information, and one which the ICRC has invested in. Codes of conduct not only provide an important legal tool and a practical illustration of the values and ideology of the relevant group, but also of its structure and chain of command. For NSAGs with a vertical hierarchy and the ability to implement the group’s code among its members, codes of conduct become an essential mechanism for compliance with IHL. Provided that the code appropriately integrates the basic rules of IHL and is explained in a simple and operational 23 24 25 26 27

ICRC 2004, p 16. See ibid., pp 15–16 Ibid. For a good overview on the subject, see La Rosa and Wuerzner 2008. ICRC 2007, p 23

360

A. Quintin and M.-L. Tougas

manner, the chance that the group will adhere to the law and make it its own is increased. As an ICRC study notes, the fact that the hierarchy of an armed group initiates or agrees to a code of conduct indicates a degree of ownership and of commitment to ensure respect for the law. This is likely to influence the behaviour of members of the armed group more than something they may perceive as having been imposed on them from the ‘outside’.28

This is why the ICRC engages these groups in discussions on the content of their codes of conduct, and when relevant and possible, on their revision with a view to better include IHL.29 Both the result and the path to it are crucial in generating respect for the law: in addition to the ultimate goal of changing their behaviour, the process itself prompts armed groups to reflect on IHL, on their attitude towards the law, and on their conduct.30 As few NSAGs have developed effective IHL-compliant training systems,31 the introduction of IHL rules within codes of conduct is fundamental. In addition, for the groups that do have proper training in place, codes of conduct are also likely to be disseminated among their members, and hence the integration of IHL rules within their codes will also have an impact on the operational training of the group. In 2011, the ICRC published a selection of codes of conduct issued by NSAGs, based on the ICRC’s comprehensive collection of such instruments.32 The publication includes codes developed by the People’s Liberation Army in China, the New People’s Army in the Philippines, the National Liberation Army and the FARC in Colombia, the National Redemption Army in Uganda, the Revolutionary United Front in Sierra Leone, and the National Transition Council in Libya. The geographic variety of the selection is as interesting as the type of rules included in each group’s code or manual, which may vary from very basic rules, such as ‘do not maltreat captives’,33 to more elaborated standards resembling fair trial guarantees: Leaders and combatants should bear in mind that executions may only be carried out for very serious crimes committed by enemies of the people and with the express authorization in each case of each organization’s senior governing body. In all such cases, evidence must

28

ICRC 2008b, p 32. See also Bangerter 2012, pp 51–58. See Beerli 2016: ‘we encourage armed groups to provide an appropriate level of instruction in the international rules and to implement codes of conduct for their members. We have worked with a number of armed groups to help them in this task, commenting on Codes of Conduct or providing initial training so that they can begin to train their own personnel’. 30 ICRC 2011b, pp 485. 31 For examples, see the ICRC’s database ‘IHL in Action: Respect for the Law on the Battlefield’, which compiles examples of good practices in relation to IHL. In particular, see the section on ‘implementation mechanisms’, which lists cases of IHL training and dissemination. ICRC, Implementation Mechanisms. See also Somer 2007, pp 678–682. 32 ICRC 2011b. 33 See ibid., p 487 (People’s Liberation Army (China) Three Main Rules of Discipline and Eight Points of Attention). 29

13

Generating Respect for the Law by Non-State Armed Groups …

361

be examined and decisions taken collectively. The leadership must produce a written record setting out the evidence.34

Codes of conduct may also be envisaged as a two-way instrument: on the one hand, they allow the ICRC and others to better understand the conduct of NSAGs and, on the other hand, they may influence their conduct through the inclusion of IHL-compliant standards within them. An interesting example in that respect is that of the ‘Code of Conduct for the Mujahideen’, elaborated by the Islamic Emirate of Afghanistan—the Taliban. Several versions have been issued to its members and made public since 2006, including most recently a revised version from May 2010,35 which seemed to include a certain degree of improvement with respect to some rules that find equivalents under IHL. Although the 2010 version still poses a number of issues in terms of its compliance with IHL, the group’s willingness to modify their rules towards better respect for IHL is already a good sign. Given that a large number of contemporary NIACs take place in Muslim-majority countries, and in parallel involve NSAGs that identify themselves with Islam, in the last decade or so the ICRC has strived to better understand Islamic law and its similarities with IHL.36 Indeed, considering that Islamic law is the primary source of law recognized and respected by certain NSAGs, any attempt to influence their behaviour is bound to take Islamic law into account. This is why the ICRC has organized and hosted several conferences and training on the relationship between IHL and Islam. For instance, in 2016, ‘some 500 Islamic scholars, representatives of other faiths, and IHL experts from over 20 countries’ gathered in Iran in order to discuss humanitarian values common to world religions; the protection due to civilians, including patients and medical workers; the plight of missing persons and their families; proper human remains management; and environmental conservation and management.37

Being familiar with the way classical Islamic law has addressed these issues, including in particular the conduct of hostilities and the protection of certain categories of persons, or of enemy property, is key not only to understanding the

34

See ibid., p 493, para 14 (Revolutionary Armed Forces of Colombia-People’s Army (FARC-EP) and ELN (Colombia) Rules of conduct with the masses). 35 This version was reproduced in the International Review of the Red Cross 2011, No. 881, Munir 2011, Annex pp 103–120. 36 See for instance Maurer 2016. 37 See ICRC 2017, p 466. Other recent examples include Mali, where in 2016 the ICRC organized workshops with over 100 community and religious leaders and around 50 magistrates and religious leaders. The goal was to discuss points of correspondence between Islamic law and IHL. See ibid. at 160. Similarly, in Niger in 2016, ‘over 360 community and religious leaders from Diffa and elsewhere examined the points of correspondence between Islamic law and IHL, at workshops co-organized with university lecturers … and at international courses … with their attendance sponsored by the ICRC’. See p 173. See similar examples in Uganda, p 209; in Burkina Faso, p 214; in Tunisia, p 248; in Afghanistan, p 317; in Bangladesh, p 323; in Pakistan, p 340; in Indonesia, p 357; in Jordan, p 485.

362

A. Quintin and M.-L. Tougas

behaviour of such groups, but also to engaging in a meaningful IHL dialogue with them. This requires a delicate balance, adapting IHL language to standards, even religious ones, acceptable to the NSAG in question without lessening or modifying the relevant IHL norms. It would indeed be a mistake to engage such groups on the sole basis of IHL if it is rejected altogether as a legitimate source of law. In parallel, it would also be a mistake to displace IHL altogether in favour of Islamic Law. Therefore, the work carried out by the ICRC in such cases consists of examining and comparing the two legal frameworks in order to highlight their common areas and assess the possibilities for reconciliation when their respective standards differ. It is not aimed at producing new standards, but rather at conveying the same message through different, but accepted, channels.38 One of the difficulties in comparing IHL and Islamic Law is the existence of divergences among Islamic jurists on certain issues, such as situations when indiscriminate attacks or incidental damage to civilian populations and objects can be justified by military necessity. However, it should also be noted that discrepancies among scholars are inevitable and in no way unique to Islamic law. Within IHL itself, while there exist fundamental rules which are generally accepted and understood, some of their specific aspects have been debated and (re)interpreted. But this should not prevent the identification of common views that are accepted by the majority of jurists. In particular, the most important messages are usually the simplest ones, and are common to both IHL and Islamic law frameworks: ‘do not kill non-combatants’, ‘do not rape’, ‘do not pillage’, etc. Further, the fact that, as mentioned above, several armed groups, including groups identifying themselves with Islam have voluntarily integrated IHL-compliant standards within their codes of conduct is already an achievement. Finally, the ICRC has not limited its comparison of IHL with other sources of influence or law to only Islamic law. Studies have also been carried out in the past concerning local and traditional customs. For instance, in 2009, the ICRC Delegation in Suva, Fiji, supported the publication of a study of traditional rules of war in the Pacific islands region: Under the protection of the palm: Wars of dignity in the Pacific.39 The study looked at the practices of several groups from Papua New Guinea, Samoa Islands, Fiji and other Pacific Islands. In addition to codes of conduct, other mechanisms may be used at the military and political leadership levels in order to strengthen the incorporation of IHL into NSAG doctrine. Among them, the ICRC has often promoted parties to NIACs to commit themselves to comply with additional IHL rules through special agreements. Although, the ICRC does not always take part in the drafting and conclusion of these agreements, it generally welcomes them. This legal possibility is recognized by, and encouraged under, common Article 3 to the Geneva Conventions, which states that ‘[t]he Parties to the conflict should further endeavour to bring into 38 39

On the issue, see Al-Dawoody 2017. See ICRC 2009b.

13

Generating Respect for the Law by Non-State Armed Groups …

363

force, by means of special agreements, all or part of the other provisions of the present Convention’. A famous example of this in action was during the conflicts in the former Yugoslavia in the 1990s, during which the ICRC invited the various parties to conclude special agreements. A Memorandum of Understanding was, for instance, signed in 1991 by the Socialist Federal Republic of Yugoslavia and by Croatia (which was, at the time, breaking away from Yugoslavia), under the auspices of the ICRC, in which the parties agreed to comply with a series of IHL rules going beyond those already applicable in NIACs. These rules included, inter alia, some regulations on the conduct of hostilities, on the establishment of protected zones, and on the tracing of the civilian population.40 A similar agreement was signed between the various parties within the Republic of Bosnia and Herzegovina, also at the invitation of the ICRC.41 More recent examples of such agreements concluded between parties to NIACs include the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law, concluded between the government of the Philippines and the National Democratic Front of the Philippines (NDFP) in 1998.42 In this agreement, which goes further than IHL and includes human rights rules, the parties committed themselves to ‘uphold, protect and promote the full scope of human rights, including civil, political, economic, social and cultural rights’,43 as well as to investigate, prosecute and punish those responsible for human rights violation and to undertake all necessary measures ‘to remove the conditions for violations and abuses of human rights and to render justice and to indemnify the victims’.44 The 2002 agreement between the Government of Sudan and the Sudan People’s Liberation Movement/Army (SLA) to protect civilian non-combatants and facilities from military attack is also worth mentioning. In this agreement, the parties explicitly recognized the application of IHL and undertook, inter alia, to refrain from targeting or intentionally attacking non-combatant civilians and to refrain from intentionally using civilians as human shields.45 Finally, the Protocol on the Establishment of Humanitarian Assistance in Darfur, signed on 8 April 2004 by the Government of

40

See Sassòli, Bouvier and Quintin, Former Yugoslavia, Special Agreements between the Parties to the Conflicts, Section A. Yugoslavia/Croatia, Memorandum of Understanding of November 27, 1991, paras (5)–(7). https://casebook.icrc.org/case-study/former-yugoslavia-special-agreementsbetween-parties-conflicts. Accessed 27 February 2018. 41 Ibid., Section B. Bosnia and Herzegovina, Agreement No. 1 of May 22, 1992. 42 Comprehensive agreement on the respect for Human Rights and International Humanitarian Law between the government of the Philippines and the National Democratic Front of the Philippines, signed on 16 May 1998 in The Hague. http://www.incore.ulst.ac.uk/services/cds/ agreements/pdf/phil8.pdf. Accessed 20 February 2018. 43 Ibid., Part II, Article 3. 44 Ibid., Part III, Article 4. 45 Agreement between the government of Sudan and the Sudan People’s Liberation Movement to protect civilian non-combatants and facilities from military attacks, 31 March 2002. http:// peacemaker.un.org/sites/peacemaker.un.org/files/SD_020331_Agreement%20to%20Protect%20Non-Combatant%20Civilians%20from%20Military%20Attack.pdf. Accessed 6 October 2017.

364

A. Quintin and M.-L. Tougas

Sudan with the SLA and the Justice and Equality Movement can also be mentioned.46 However, by the ICRC’s own admission, these agreements may nevertheless sometimes be ‘of limited impact in terms of preventing violations of the law’,47 as was the case of the Yugoslav agreements, which did not prevent the serious IHL violations committed during the conflict. However, they remain an important legal tool, in that they represent official recognition by the parties to a conflict of the applicable law and of their willingness to commit themselves to humanitarian rules towards one another. For instance, the Appeals Chamber of the ICTY used the 1991 and the 1992 Agreements to confirm the existence of a prohibition on attacking civilians.48 Unilateral declarations, ceasefires and peace agreements are others tools available to strengthen IHL compliance and ownership by NSAGs, especially when considering that such groups cannot formally ratify or accede to the Geneva Conventions, Additional Protocols49 or other IHL treaties. Nevertheless, they can unilaterally declare their intention to respect the IHL rules contained in those treaties. This can be done either by a public declaration or a deed of engagement. The ICRC and other organizations50 encourage NSAGs to make unilateral declarations in that respect. Indeed, when unilateral declarations are sent to the ICRC, the institution will usually acknowledge it and encourage the group to take the necessary and appropriate measures to ensure that the content of the declaration is implemented. Examples of such declarations received by the ICRC include that of the Coordinadora Guerrillera Simon Bolivar (CGSB)—an umbrella organization gathering several NSAGs party to the conflict in Colombia—in 1987, and those received from the NDFP in the Philippines in 1991 and 1996.51 Ceasefire and peace agreements can also include – and often do include – provisions urging the parties to respect and ensure respect for certain IHL rules

46

See International Commission of Inquiry on Darfur 2005. ICRC 2008b, p 17. 48 See ICTY, The Prosecutor v. Enver Hadzihasanovic and Amir Kubura, Decision on Joint Defence Interlocutory Appeal of Trial Chamber on Rule 98bis Motion for Acquittal (Appeals Chamber), 11 March 2005, Case No. IT–01–47–AR73.3, para 28, fn. 51. See also ICTY, The Prosecutor v. Stanislav Galic, Trial Judgment, 5 December 2003, Case no. IT-98-29-T, para 96 (finding that the 1992 agreement had rendered applicable Article 51 of AP I for the purposes of the crime of spreading terror among the civilian population). 49 With the very rare exception of armed groups involved in a war of national liberation meeting the conditions of Article 1(4) of the Additional Protocol I, and provided that such groups respect the conditions stated in Article 96.3. See also Chap. 2 by Bellal in the present volume. 50 The work done by the organization Geneva Call is worth mentioning. For information about this organization and its work, see Geneva Call n.d. See also Chap. 15 by Heffes in the present volume. 51 See ICRC 2008b, p 20. For other examples of unilateral declarations made by NSAGs, see Geneva Call n.d. Their Words. Directory of Armed Non-State Actors Humanitarian Commitments. 47

13

Generating Respect for the Law by Non-State Armed Groups …

365

applicable to the conflict. They are a means of ensuring respect for IHL while the conflict is still ongoing, for instance on the protection of humanitarian personnel,52 or after hostilities in the case of a peace agreement. This is of primary importance: indeed, one should not forget that some rules of IHL remain relevant even after the cessation of hostilities.53 For instance, reference to the release of detainees belonging to the other side, to the evacuation of civilians or to the right of the family of missing persons to know of their fate, can be included in a peace agreement between a government and a NSAGs, or between NSAGs themselves. For example, the Peace agreement between the Government of Liberia, the Liberians United for Reconciliation and Democracy, the Movement for Democracy in Liberia and other political parties included an express reference to the obligation of all parties to provide the ICRC with information regarding persons detained in relation with the conflict and to enable the ICRC to visit them and to verify their condition and status.54 Although humanitarian actors’ capacity to influence the content of these documents may be limited, especially in respect to peace agreements, some organizations, like the ICRC, can be consulted and given the opportunity to provide comments on draft versions of the relevant document(s).55 However, it must be recalled that, when it comes to IHL, the inclusion of rules that are already applicable into agreements between the parties does not modify their application or their binding character.56 What may be achieved through these agreements is an official commitment of the NSAG to abide by these existing rules and the possibility to commit them to respect other IHL rules that may not—without an agreement—be applicable in NIACs. Once signed, they become an additional available tool to engage NSAGs that are party to such agreements with IHL. Finally, rappel du droit (recall of the law) is another legal tool used by the ICRC, and one of a unique nature. Although not systematic, especially in NIACs, it 52

See, for instance, the Agreement on Ceasefire and Cessation of Hostilities Between the Government of the Republic of Liberia and Liberians United for Reconciliation and Democracy and the Movement for Democracy in Liberia at Article 5, Annex 1, Comprehensive Peace Agreement Between the Government of Liberia and the Liberians United for Reconciliation and Democracy (LURD) and the Movement for Democracy in Liberia (MODEL) and Political Parties, signed in Accra on 18 August 2003. https://www.usip.org/sites/default/files/file/resources/ collections/peace_agreements/liberia_08182003.pdf. Accessed 6 October 2017. 53 The signature of a peace agreement, however, does not necessarily mean that the conflict is over. This should be evaluated following a factual analysis of the situation on the ground based on the legal criteria established by IHL. On this issue, ICRC 2016c, paras 485–496. See also ICTY, The Prosecutor v. Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj, Trial Chamber Judgement, 3 April 2008, Case No. IT-04-84-T, para 100. 54 Comprehensive Peace Agreement Between the Government of Liberia and the Liberians United for Reconciliation and Democracy (LURD) and the Movement for Democracy in Liberia (MODEL) and Political Parties, signed in Accra on 18 August 2003, Article 10. https://www.usip. org/sites/default/files/file/resources/collections/peace_agreements/liberia_08182003.pdf. Accessed 6 October 2017. For other examples, see ICRC 2008b, pp 25–26. 55 ICRC 2008b, p 26. 56 On this issue of constitutive and declaratory agreements, see ibid., p 16. See also Heffes and Kotlik 2014, p 1205.

366

A. Quintin and M.-L. Tougas

is the primary and most frequently-used means for the ICRC to communicate with parties to an armed conflict both on the legal classification of the situation—IAC or NIAC—and on the applicable rules of IHL. It usually contains a reminder of the main IHL rules applicable to the situation. A rappel du droit is a written document —e.g. a letter or a memorandum—communicated to the parties in a bilateral and confidential manner. It is done at the beginning of the conflict, and/or during the conflict if the situation so requires. When the ICRC has no contact with one or more of the parties involved, a general rappel du droit can be made through public channels such as press releases.57 This document then provides a basis for the ICRC to start a dialogue on the respect for IHL and protection issues with the parties to the conflict.58

13.3.2 Education and Training 13.3.2.1

IHL Dissemination Programmes

The ICRC’s role in IHL training is probably among the best-known aspects of the organization’s work with NSAGs. In that respect, one of the often-debated examples of IHL training with a NSAGs is the programme the ICRC carried out in 2014 and 2015 with Hamas’ Izz al-Din al’Quassam Brigades, the military wing of the Palestinian organization, as well as with two other Gaza-based militant groups. As part of the programme, the ICRC provided training on the rules of IHL, including those regulating the conduct of hostilities, to more than 200 fighters. As the ICRC’s spokesperson in Gaza declared, ICRC staff are teaching and training the Palestinian resistance factions the laws, texts and the spirit of [humanitarian law] as well as the applicability of these laws to the conflict they are involved in.59

This was not the first time that the ICRC conducted this type of IHL training; numerous such programmes have been carried out with the Taliban in Afghanistan, and with different NSAGs in Chad, Colombia, the DRC, the Philippines, Darfur (Sudan), and already in the Gaza strip in 2008. As explained in the first part of this chapter, this is an integral part of the ICRC’s mission, and one that is essential in order to foster an environment conducive to the respect for human lives and dignity during armed conflict.

57

ICRC 2008b, p 26. Ibid., p 15. 59 See Almeghari 2007. See also MEE Staff 2015 Hamas fighters take part in Red Cross international law workshop, Middle East Eye, 16 August 2015. http://www.middleeasteye.net/news/ hamas-fighters-take-part-red-cross-international-law-workshop-1553272322. Accessed 6 October 2017. 58

13

Generating Respect for the Law by Non-State Armed Groups …

367

Nevertheless, the initiative in Gaza—just as others of a similar nature in the past —faced heavy criticism, with some denouncing the fact that the ICRC was ‘conducting seminars for terrorists in Gaza on how they can be, umm, more humanitarian when attacking Israel’.60 Along the same lines, others expressed the view that ‘[t]rying to instil in Hamas and other jihadists the values of international humanitarian law is like attempting to teach an alligator to clean its teeth after eating its prey’.61 While the criticisms may be exaggerated, the political consequences of engaging with NSAGs on IHL cannot be ignored. And the limits of such programmes are acknowledged by the ICRC. When asked whether IHL training may be organized with any political or military group, the ICRC Head of Delegation for Israel and the Occupied Territories replied that [t]he answer is no. If no corrective action is taken by the party, or, worse, if it is a means to perpetuate or aggravate the abuse, it definitely can be a wrong, irresponsible thing to do.62

And, indeed, IHL workshops should not be understood as meaning that the ICRC will, after the completion of the training sessions, vouch for the future conduct of the trained NSAG members. The organization’s purpose is limited to encouraging NSAG to comply with the rules applicable during armed conflict, such as those that put restraints on the conduct of hostilities, and those that protect persons who have fallen into the hands of a party to the conflict. But the effectiveness of the training will primarily depend on the willingness of the group to accept and enforce these rules. In the case of Hamas, it seems that the training had some positive effects: according to Jacques de Maio, [f]or the first time, Hamas is actually, in a private, protected space, expressing a readiness to look critically at a number of things that have an impact on their level of respect for international humanitarian law.63

In the last few years, the ICRC has also conducted IHL training with commanders of the Free Syrian Army. Here again, the initiative is grounded on a sustained dialogue with the group, and is one of the ICRC’s components of a broader prevention approach aimed at promoting better respect for the law by all parties to the Syrian conflict. One of the results of the programme was the development of online training based on virtual-reality tools inspired from video game design and technology.64 This new way of conducting IHL training allows a more

60

Freund M (2015) Why is the Red Cross Holding Seminars for Hamas? The Jerusalem Post, 18 August 2015. http://www.jpost.com/Opinion/Why-is-the-Red-Cross-holding-seminars-for-Hamas412500. Accessed 6 October 2017. 61 Ibid. 62 de Maio J (2015) Why is the ICRC holding seminars on the law of war with Hamas? The Jerusalem Post, 7 September 2015. http://www.jpost.com/Opinion/Why-is-the-ICRC-holdingseminars-on-the-law-of-war-with-Hamas-415530. Accessed 5 October 2017. 63 Rudoren and Waheidiaug 2015. 64 The online training is available in Arabic on the ICRC’s website at https://www.icrc.org/ar/ document/law-armed-conflict-essentials. Accessed 6 October 2017.

368

A. Quintin and M.-L. Tougas

in-depth involvement of the trainees, one that places them in situations that actually resemble their own battlefield. Instead of being limited to classroom discussions and paper case studies—which nevertheless remain essential training tools—the group is faced with visuals depicting on-the-spot targeting decisions, or situations that involve dealing with recently captured persons. Beyond the rules applicable to armed conflict, the training workshops often include implementation components. As mentioned, a major part of the effectiveness of these workshops lies in the willingness of the NSAG’s hierarchy to enforce IHL rules. In 2016, the ICRC held training and dissemination sessions in many locations, including for instance in Somalia for members of various armed groups,65 in South Sudan for over 3,270 weapon bearers from different sides,66 or again in the Philippines for 38 members of the Moro National Liberation Front.67 Such IHL training may include discussions with experts on the proper conduct of hostilities, on protection of specific categories of persons and services, such as the protection of health professionals or safe access to humanitarian aid; they may also integrate more operational discussions such as IHL-compliant techniques for capturing, disarming, searching or even interrogating a surrendering enemy. Similarly, these workshops also aim at equipping commanders with the necessary tools for them to create or adapt their own disciplinary mechanisms. For instance, in 2007 the ICRC organized in Geneva an Interregional Meeting on the Role of Sanctions in Ensuring Greater Respect for International Humanitarian Law, which gathered representatives of various armed forces, as well as armed groups and academic circles.68 More recently in Jordan, 35 commanders of Syrian armed groups in 2014,69 144 in 2015,70 and 60 in 201671 discussed the conduct of hostilities and the importance of not hindering people’s access to health care. In order to be accepted, each of these training activities needs to be adapted to the targeted NSAG. This means taking into account the structure of the group, as well as its own values, culture, traditions and, sometimes, religious beliefs.

13.3.2.2

Health Care in Danger

In addition to general IHL training aimed at discussing the main aspects of the rules applicable during armed conflict, some training programmes developed by the ICRC in recent years have focused on a specific issue of concern: the ‘Health Care in Danger’ (HCiD) worldwide campaign launched in 2011. The latter is a Red

65 66 67 68 69 70 71

ICRC 2017, p 191. Ibid., at 198 ICRC 2016d. ICRC 2008b, p 70. See also Address by General Jean-René Bachelet 2008. ICRC 2015a, p 496. ICRC 2016a, p 502. ICRC 2017, p 485.

13

Generating Respect for the Law by Non-State Armed Groups …

369

Cross/Red Crescent Movement initiative ‘aimed at addressing the issue of violence against patients, health workers, facilities and vehicles, and ensuring safe access to and delivery of health care in armed conflict and other emergencies’.72 It includes three main components: (i) public awareness of the humanitarian impact of violence against such health personnel and services, (ii) consolidation and improvement of field practices and national responses to violence, and (iii) mobilization of a broad Community of Concern.73 The second component integrates in-depth work on the operational practices of NSAGs with respect to health care personnel and services, as well as numerous dissemination sessions on the subject. Already before, and since the launch of the campaign, the ICRC has encouraged the inclusion of IHL rules within a variety of training activities conducted with NSAGs, such as first aid training or war-surgery courses. The impact of such courses, as well as that of the broader HCiD campaign, could already be seen shortly after the campaign’s launch. For instance, [i]n 2011, the Taliban leadership issued a clear commitment not to misuse health facilities and ambulances as perfidious means of war. The result was less misuse of ambulances (and presumption thereof by the other side) and thus enhanced protection of health facilities and personnel.74

Training activities were also accompanied by efforts to better understand NSAGs’ attitudes and behaviours towards the respect for, and access to, health care. For instance, between April 2013 and October 2014, the ICRC carried out consultations with 36 armed groups from 10 countries on four continents. The process aimed at providing a forum for NSAGs to discuss—and hence for the ICRC to better understand—their views regarding the safe delivery of health care as well as their willingness to ensure better protection for medical services and personnel.75 These consultations also led to the identification of ten case studies which illustrate the existing dilemmas regarding the protection of health care and assist in introducing the relevant IHL rules, as well as practical measures that armed groups may take when faced with these situations. The case studies tackle topics such as health-care personnel’s access to civilians, respect for and the safety of health-care personnel, and an understanding of health-care ethics, and may easily be used by NSAGs in their own training.76 The question of the accountability and responsibility of NSAG leadership to impose sanctions when their members do not respect IHL rules is also part of the dialogue the ICRC is having with NSAGs. The ICRC encourages respect for IHL

72

Health Care in Danger n.d. It’s a Matter of Life and Death. http://healthcareindanger.org/hcidproject/. Accessed 13 October 2017. 73 Ibid. 74 See de Maio J (2015) Why is the ICRC holding seminars on the law of war with Hamas?, The Jerusalem Post, 7 September 2015. http://www.jpost.com/Opinion/Why-is-the-ICRC-holdingseminars-on-the-law-of-war-with-Hamas-415530. Accessed 5 October 2017. 75 ICRC 2015c, at 27–29. 76 Ibid., pp 30–44.

370

A. Quintin and M.-L. Tougas

by NSAGs, for instance, by inviting them to make unilateral declarations on the respect and protection of the wounded and sick and on access to health care;77 but in the end, cannot force them. Ultimately, the decision to respect IHL remains that of the relevant group. Therefore, all the activities presented in this chapter, although they have a real impact on the understanding of NSAGs concerning IHL and can have an impact on their behaviour, they cannot provide any guarantees. Sometimes a group—just like States may also do—will choose not to respect the law or, despite a commitment to respect it, still violate it.

13.3.3 Norms of Restraints The ‘integration process’ presented in the preceding sections implies that NSAGs have a vertical structure with a centralized hierarchy able to impose norms and conduct upon their subordinates. However, an increasing majority of NSAGs involved in NIACs today lack such a vertical organization. Instead, they are frequently formed as the result of loose alliances and have horizontal structures. The ICRC’s approach, based on a top-down integration process, can therefore no longer be efficiently applied to such groups. As a consequence, the ICRC decided in 2015 to embark upon a revision of its Roots of Behaviour in War study, in order to take into account the changes in contemporary armed conflict, including the nature of the parties, that had taken place since the study was first published in 2004. In addition to expanding its focus to horizontally structured entities, the ICRC also decided to shift its perspective: instead of attempting to understand the reasons why combatants and weapon bearers commit IHL violations, the study will analyze the mechanisms that contribute to restraining NSAGs from committing such violations. The study was therefore renamed, from Roots of Behaviour to Roots of Restraints,78 in order to emphasize this new perspective. As explained by the study’s coordinators, the objective is to better understand the mechanisms that lead to restraint and to develop strategies to influence—or at least generate gradual changes—the behaviour of NSAGs.79 The study therefore aims at understanding the various norms of restraint that may influence different NSAGs, the impact of formal processes when applied to vertically-organized NSAGs, and the impact of informal processes—as well as their formation—for more horizontally structured NSAGs.80 While it is crucial for an organization like the ICRC to invest in a better understanding of the sources of influence of NSAGs, it may also mean opening a Pandora’s box of sensitive issues for a neutral organization. First, looking at sources

77 78 79 80

See model of unilateral declaration for NSAGs in ibid., p 49. See ICRC 2016a. Ibid. ICRC 2018.

13

Generating Respect for the Law by Non-State Armed Groups …

371

of influence will include examining not only the role played by local communities and cultural or religious leaders, but also the role played by donors, economic partners, political powers, etc. One concrete example is that of the means and methods of warfare used by each NSAG. This is necessarily influenced by various factors such as the nature of the conflict, the level of asymmetry between the parties, the geography of the battlefield (urban v. rural areas, flat land v. mountainous regions), etc. But this may also be influenced by where and from whom NSAGs procure their weapons, or by what other organizations or countries, including other military forces, may be involved in their training. In such a context, generating respect for the law by NSAGs may become a heavily politicized process. For instance, one may consider the recent adoption and entry into force of the Arms Trade Treaty (2013), which prohibits a State from transferring weapons if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.81

States bound by this obligation may be reluctant to officially admit to having sold weapons to a NSAG. In other words, while it may be possible to identify the source of influence, acting upon it in order to impact the behaviour of the NSAG concerned may be a far more complicated affair. Second, understanding NSAGs and their methods also involves determining the nature of the armed conflict. While it may sound obvious that NSAGs will necessarily be parties to NIACs, the legal classification of the conflict will also be influenced by the degree, if any, of external involvement. If a State uses a NSAG to further its own military objectives, i.e. in legal terms, if a third State exercises a degree of control over a NSAG that meets the legal test of ‘overall control’, then the group would be considered as a proxy of the relevant State and the conflict would turn into an IAC. Influencing the behaviour of the NSAG is, in such a case, not only a question of willingness on the part of its members, but also of influencing the actions directly emanating from, at a distance, the State concerned. Furthermore, in such a situation, the applicable law is affected, which means that the IHL rules applicable to the NSAG itself will be modified, both quantitatively and qualitatively. Legally speaking, the rules applicable are indeed those of an IAC; however, in practice, they remain to be implemented by a NSAG, which may not have the material ability and capacity to respect the full content of IHL in the same way that a State can. The new ICRC Study on the Roots of Restraints will need to take into account the complexity of establishing and maintaining a dialogue not only with NSAGs, but also with those States that directly and indirectly influence them. Having looked at the ICRC’s ongoing initiatives in generating respect for IHL by NSAGs, the third part of this chapter will discuss some of the contemporary 81

Arms Trade Treaty, opened for signature 2 April 2013, UNTS No. 52373, entered into force 24 December 2014, Article 6(3).

372

A. Quintin and M.-L. Tougas

challenges the ICRC faces in this respect. First, the above-hinted challenges linked with the different capacities of NSAGs to effectively respect some rules of IHL and the inequality created by national legislation will be further presented. After this, the difficulties of integrating NSAGs’ practice into the process aiming at clarifying and/or developing the law in the current context will be addressed. Lastly, the risk of the criminalization of humanitarian aid created by overbroad anti-terrorism laws will be discussed.

13.4

Contemporary Challenges

When it comes to ensuring respect for the law, the actual capacity of the leadership of a NSAG to impose on its members specific behaviour will necessarily play a role. Different factors may potentially limit that capacity: the level of organization of the group, the amount of time the group has existed for, the personal motivations of the group’s members, its structure (horizontal v. vertical), etc. But beyond the material capacity of the group to respect and apply the law, their perception of the rules, and hence their willingness to accept them, is a force to be reckoned with.

13.4.1 Adapting the Legal Messages Without Lessening the Standards Translating IHL rules into a language that will not only be understood by members of NSAGs, but also echoes those norms that they already abide by without diminishing the IHL rules’ content is not an easy task. As stated by Ali Ahmad Jalali, Distinguished Professor at the National Defense University in Washington D.C., former member of the Mujahideen during the war against the Soviet Union in Afghanistan, as well as a former Colonel in the Afghan National Army and a former Minister of Interior of Afghanistan from 2003 to 2005: In my opinion, the law of armed conflict is important only when you are dealing with educated populations. For whom were those Mujahideen fighting in Afghanistan? Many of them were villagers; they’d never even heard about the laws of their own country, let alone international law or the Geneva Conventions. Nobody had except for some people, maybe the educated ones, but the others behaved on the basis of the sources I just mentioned [Sharia and customary – tribal and non-tribal – law].82

In this respect, a lot of work has been done by the ICRC. For instance, and as mentioned earlier, in order to assist its work with some religiously-orientated NSAGs, the ICRC created in 2004 a specific unit tasked with, inter alia, developing its relations with, and understanding of, the Muslim world. Since then, an essential 82

Interview with Ali Ahmad Jalali 2011, p 285.

13

Generating Respect for the Law by Non-State Armed Groups …

373

part of this work has focused on forging links and interactions with Muslim scholars and on initiating a dialogue with them on the commonalities between IHL and the relevant rules of Islamic law and jurisprudence. Studies that look at behaviour and rules in wars that pre-date the development of contemporary IHL and which highlight similarities with contemporary IHL principles, like the one mentioned earlier by the ICRC Delegation in Suva, Fiji, in 2009 can also be mentioned as they seek to trace the basis of humanitarian principles and rules expressed in IHL to local codes and traditions.83 This work is essential: recognizing the need to translate legal rules into a language accepted by a NSAGs, and anchoring them within similar norms, traditions, cultural or religious beliefs which are openly accepted by the relevant group ensures that IHL’s protective substance will not be lessened. Also, Sassòli is right when he warns against imposing unrealistic rules on NSAGs: this would not only result in the violations of these rules, but also undermine the credibility of other rules that they are in a position to respect.84 And it is generally those basic rules that are simple to convey that are discussed by ICRC’s delegates with NSAGs: do not rape, do not kill civilians not taking part in hostilities, do not torture detainees, etc. For instance, in the context of Côte d’Ivoire, the ICRC delegation produced playing cards for those who carry arms that illustrate basic IHL rules and express them in very simple language: Combattants et non combattants? La distinction est nette!; Soins médicaux? Sans discrimination!; Mines antipersonnel? Hors la loi!; La croix rouge? Elle est sacrée!85 Although not specifically developed for the purpose of simplifying existing rules, the ICRC’s customary IHL study is worth mentioning here, for it is often used to identify and explain the rules applicable to NSAGs. In 2005, after 10 years of research pursuant to a mandate given to it by the 26th International Conference,86 the ICRC published a list of 161 IHL rules of a customary nature, the majority of which (146) were found to be applicable in NIACs. However, it cannot be denied that this study is based solely on the practice of States and does not take into account the practice of NSAGs.87 One could therefore argue that NSAGs may not feel concerned or even bound by the IHL rules identified in that study,88 or even that the study itself is devoid of much significance for NSAGs.89 Nevertheless, when it comes to communicating the law with lay persons, this study lists basic IHL rules in clear and simple language.

83

See ICRC 2009b. Sassòli 2011, p 429. 85 ‘Combatants and non-combatants? The distinction is clear! Health care? Without discrimination! Anti-personnel mines? Illegal! The Red Cross? It is sacred!’ Translation by the authors. The playing cards were produced by the ICRC Delegation in Abidjan in 2010. 86 26th International Conference of the Red Cross and Red Crescent 1995. 87 See Henckaerts 2005, p 178 (the existence of a rule of customary law is determined by State practice and opinio juris, excluding the practice of NSAG). 88 See Sassòli 2011, p 428. 89 See Provost 2011, p 441. 84

374

A. Quintin and M.-L. Tougas

If some rules are difficult to convey because of their complexity or their lack of realism in respect to most NSAGs, other rules are so because of the way they are interpreted under national law. In this respect, another issue faced by the ICRC in its dialogue with NSAGs is the fiction of belligerent equality. Indeed, IHL presupposes the equality of belligerents, that is to say, all parties—States and NSAGs —are bound by the same rules and have the same obligations. However, one cannot deny the fact that very few NSAGs have the same capacity as States when it comes to ensuring respect for legal norms. Moreover, although IHL applies equally to all parties, national legislation does not. In fact, NSAG’s members are likely to face domestic prosecution, and severe sanctions, for the mere act of taking part in hostilities against a State, including for behaviour that respects IHL, such as attacking a military barracks of the armed forces of the State they are fighting against. Furthermore, with the proliferation of anti-terrorism legislation around the world, mere membership of a NSAG may be a sufficient basis for domestic prosecution. The fact that no matter how much they respect IHL, NSAG’s members are likely to face prosecution for violations of domestic law may have a negative impact on their incentive to respect IHL and their commitment to ensure IHL is respected by the group. Therefore, acknowledging this reality while at same time conveying legal messages without lessening the legal standards is a constant challenge. In addition to inequality before domestic law, some rules that apply equally to all parties may in practice be interpreted in a manner that is detrimental to NSAGs. Some IHL rules, such as the customary rules prohibition of arbitrary detention and of pillage, are made quasi-impossible for NSAGs to comply with. Indeed, national legislation does not recognize the right of NSAGs to legally detain people and pass judgment upon them. This is generally considered as the exclusive right of the State’s judicial apparatus without exception, not even in the context of NIACs. The same goes for pillage of natural resources, as the owner of those resources is, in many countries, the State. As a consequence, where NSAGs exploit such resources, the State concerned would generally regard this as an inherently illegal act as they do not have the consent of the owner (the State).90 Of course, other factors may come into play, such as support from the local population or recognition and respect by local and international actors, but the likelihood of criminal sanction by the relevant State remains. Amnesties, which IHL calls upon the authorities in power to grant to the broadest extend possible at the end of hostilities,91 may therefore not only help in negotiating peace agreements, but can provide an important incentive for NSAGs to respect IHL—recalling that amnesties may not be granted for

90

On this, and for other example, see Sassòli 2011, pp 429–430. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), opened for signature 12 December 1977, 1125 UNTS 609, entered into force 7 December 1978, Article 6, para 5; and ICRC Study on Customary IHL, Rule 159. 91

13

Generating Respect for the Law by Non-State Armed Groups …

375

international crimes.92 However, amnesties may be controversial and politically sensitive, especially in contexts where the NSAG is considered or labelled as a ‘terrorist group’ by the State. As such, the ICRC reminds to authorities of the encouragement made by IHL to grant amnesties at the end of the hostilities for acts committed by NSAGs and not constituting a war crime, but in its dialogue with NSAGs it can only mention it has a (sometimes remote) possibility with limited impact on immediate IHL compliance by the group.

13.4.2 NSAG’s Practice in Processes of Clarification and Development of the Law As discussed, actual respect for the law in practice is necessarily linked to the willingness to comply with the applicable rules. It is also connected, evidently, to the knowledge of these rules. This in itself implies that the law exists and is sufficiently clear. In that regard, ensuring that NSAG respect IHL is a task rendered difficult by the relative lack of positive law applicable to NIACs when compared with the rules applicable to IACs. While attempts to clarify and develop the law of NIACs are crucial, regulating the conduct of NSAGs is faced with legal challenges.93 In 2011, during the 31st International Conference of the Red Cross and Red Crescent, the ICRC presented the results of a study aimed at identifying areas of IHL which were insufficiently or inadequately developed. Entitled Strengthening legal protection for victims of armed conflict, and based on research conducted between 2008 and 2010 as well as on consultations with States, the report suggested four areas that should be addressed by States: protection of persons deprived of liberty, compliance with IHL and reparations for victims of violations, protection of the natural environment, and protection of internally displaced persons.94 Although most areas targeted all kinds of armed conflicts, NIACs would necessarily be given particular attention given their prominence today. At the end of the International Conference, the ICRC requested a mandate to continue looking into the first two areas, i.e. detention and compliance mechanisms.95 The consultation processes that

92 ICRC Study on Customary IHL, Rule 159: ‘At the end of hostilities, the authorities in power must endeavour to grant the broadest possible amnesty to persons who have participated in a non-international armed conflict, or those deprived of their liberty for reasons related to the armed conflict, with the exception of persons suspected of, accused of or sentenced for war crimes’. The exception of war crimes is well enshrined in State practice, as attested by the ICRC Study. See practice related to Rule 159 at https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_ rule159. 93 For a general overview of IHL challenges, see ICRC 2015b. 94 See ICRC 2011a. 95 Ibid., para 6.

376

A. Quintin and M.-L. Tougas

followed the International Conference on both aspects are particularly interesting in the way they tackled the question of NIACs.

13.4.2.1

Strengthening the Protection of Persons Deprived of their Liberty

Starting with the legal protection of persons deprived of their liberty, it is interesting to note that Resolution 1 invited the ICRC to ‘pursue further research, consultation and discussion in cooperation with States and, if appropriate, other relevant actors, including international and regional organizations’.96 While the list of ‘other relevant actors’ is not exhaustive, NSAGs are not expressly mentioned. Because the mandate includes both IAC and NIAC, this absence is not surprising; nevertheless, taking them into consideration seems desirable in order to better understand the gaps and weaknesses of, and then strengthen, the law related to detention in NIACs. It is evident, however, that discussions on NSAGs are politically sensitive, and the four-year consultation process that followed the adoption of Resolution 1 brought to light some very concrete issues in this respect. For instance, as one would expect, the mere recognition within the law of what NSAGs could and could not do under IHL faced a high level of reluctance from States. In that context, the fact that Resolution 1 acknowledges—even implicitly—the existence of non-State parties to armed conflicts, can be considered an achievement.97 In any case, a number of challenges were raised by States within the framework of the consultations on detention. One of them concerned the ‘difficulty of taking into account the diversity of capabilities among non-State parties to a NIAC’,98 a matter which has already been addressed in the previous section of this chapter. In addition, one major concern related to the ‘potential legitimizing effect of regulating detention by non-State parties to a NIAC’.99 Although Common Article 3 addresses this issue through the famous statement that nothing in the Geneva Conventions could ‘affect the legal status of the Parties to the conflict’, the issue has still not disappeared and, in fact, it has gained importance. What is at stake here is not only the recognition that NSAGs are involved in armed conflicts, but also the recognition of specific acts that they may conduct, and in particular detention, during the course of the conflict. In other words, ‘States see a risk that regulation would imply the lawfulness of armed groups’ detention activities, or accord them a legal status under international law’.100

96

Ibid. See Ibid., para 5 (‘acknowledges that strengthening the IHL protection for persons deprived of their liberty by any party to an armed conflict is a priority’). 98 ICRC 2015d, p 32. 99 Ibid. 100 Ibid. 97

13

Generating Respect for the Law by Non-State Armed Groups …

377

The ICRC is here faced with a difficult situation. It is clear that the law of non-international armed conflict—whether common Article 3 or Additional Protocol II—is ‘silent on the grounds or procedural safeguards for persons interned in NIACs’.101 One of the goals of the consultation process was therefore to discuss the grounds and procedures for detention. And this is where the difficulty emerges: how can grounds of detention be defined without implying that all parties to the conflict may lawfully detain on these grounds? It is not the purpose of this chapter to discuss the question of whether IHL provides an authority to detain during NIACs; however, it cannot be denied that the identification of the grounds for which detention would be considered lawful under IHL would, if not authorize detention by all parties to the conflicts, at least acknowledge that it can occur. In that context, the ICRC reminded States that the lawfulness of detention under IHL would be ‘without prejudice to domestic legal frameworks’. Indeed, ‘IHL leaves States free to criminalize the activity of non-State parties to a NIAC’,102 bearing in mind Article 6(5) of APII that encourages the granting of amnesties at the end of the armed conflict. In addition, the ICRC also suggested that ‘careful drafting’ could be used to ‘convey that the activity being regulated is not being condoned’.103 This would be done through the exclusive use of prohibitions, obligations or restrictions, as opposed to authorizations. It is true that the other aspects discussed in relation to detention (conditions of detention, particularly vulnerable detainees, and detainee transfers) did not trigger as much reaction from States. Concerned mainly with the protection of persons, these aspects can generally be formulated as constraints or obligations placed on the belligerents. The issue of how NSAGs are addressed is not a trivial one, since respect for the law by NSAGs will be influenced by their perception of it. If the law were to be perceived as unfair, or as treating NSAGs in a different manner than it treats States, then compliance could be jeopardized. ICRC colleagues based in the field regularly report that NSAGs are generally very sensitive to legal discrepancies between how they and States are treated. One example in this regard is that of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (2000). While the Protocol, in Article 3, raises the minimum age for voluntary recruitment into State armed forces from 15 to 18, it adds that this requirement ‘does not apply to schools operated by or under the control of the armed forces of the States Parties’.104 This has been understood by several NSAGs as creating a difference of treatment: while States would be permitted to start recruiting children from the age of 15 to attend schools run by its armed forces,

101

ICRC 2014, p 6. See also Chap. 7 by Mégret in the present volume. ICRC 2015b, p 32. 103 Ibid. 104 Optional Protocol to the Convention on the Rights of the Child, on the involvement of children in armed conflict, New York, opened for signature 25 May 2000, UNTS No. 27531, entered into force 12 February 2012, Article 3(5). 102

378

A. Quintin and M.-L. Tougas

according to the same Protocol NSAGs have to comply with the 18-year-old threshold, even for similar schooling.105 The fact that these groups are aware of such provisions and are receptive to the legal nuances is nonetheless a good sign of their willingness to respect the law. It is also positive that States have urged for ‘practical and operationally useful’ standards.106 In order to create genuine incentives for respect, discussions on detention in NIAC shall continue to acknowledge that detention by NSAGs is a factual reality and should bear in mind the latter’s practice in this respect.

13.4.2.2

Initiative on Compliance with IHL

The 31st International Conference also invited the ICRC, in Resolution 1, to pursue further research, consultation and discussion in cooperation with States and, if appropriate, other relevant actors, including international and regional organizations, to identify and propose a range of options and its recommendations to … enhance and ensure the effectiveness of mechanisms of compliance with international humanitarian law.107

Pursuant to that resolution, the ICRC and Switzerland jointly conducted several consultative meetings with States between 2012 and 2015 and submitted a report to the 32nd International Conference.108 On that occasion, it was agreed to continue discussions through a State-driven intergovernmental process and to present the outcomes at the 33rd International Conference to be held in 2019.109 The resolution adopted in 2011 and launching the process neither explicitly mentions NSAGs as relevant actors nor the need to consult with them. However, on several occasions during the consultations and State meetings conducted in preparation for the 32nd International Conference, ‘the need to find appropriate ways to ensure that all types of armed conflicts, as defined in the Geneva Conventions of 1949 and their Additional Protocols (for the latter as may be applicable), and the parties to them are included’ was mentioned among the guiding principles informing the process. These principles were recalled in Resolution 2 adopted by the 32nd International Conference.110 During the 2012–2015 consultation process, different options were identified as possible functions of a compliance mechanism, but the participation of NSAGs as such was not envisioned.111 Presence of observers was discussed, but NSAGs were 105 Testimony from ICRC staff collected by the authors. See also Chap. 14 by Kotlik in the present volume. 106 ICRC 2015d, p 34. 107 International Conference of the Red Cross and Red Crescent 2011a, para 6. 108 ICRC and Swiss government 2015a. 109 32nd International Conference of the Red Cross and Red Crescent 2015, para 2. On the Strengthening compliance with IHL process and the ICRC-Swiss initiative, see Pejic 2016. 110 32nd International Conference of the Red Cross and Red Crescent 2015, para 2. 111 ICRC and Swiss government 2015a.

13

Generating Respect for the Law by Non-State Armed Groups …

379

not mentioned among them—potential observers discussed were the components of the RCRCM, international and regional organizations and entities, and civil society actors.112 The need to avoid politicization, to ensure non-contextualized dialogue and the State-driven character of the Meeting of States created for the purposes of continuing the process were also stressed during the discussions. However, and interestingly, on many occasions during the consultation process, the issue of NSAGs was raised. For instance, during the second meeting of States in 2013, it was highlighted by some that current IHL compliance mechanisms do not envisage ways in which compliance with IHL by non-State armed groups could be considered. It was stated that such a need exists, given the increasing number of non-international armed conflicts and the humanitarian consequences of this type of armed conflict.113

And at the fourth meeting of States in 2015, there was general agreement that, in keeping with the guiding principles of the process, the IHL compliance system should contribute to improving respect for IHL in all types of armed conflicts. In this context, some States stressed that ways should be found, going forward, for the Meeting of States to examine the issue of non-compliance with IHL by non-State parties to armed conflicts.114

At the 32nd International Conference, it was recommended that the initiative continue in the form of a State-driven intergovernmental process in order to find agreement on the features and functions of a potential forum of States. Resolution 2 also mentions the role of the International Conference and IHL regional fora to enhance the implementation of IHL.115 As aforementioned, the need to include all types of armed conflicts and the parties to them was reaffirmed on that occasion. Resolution 2 also stresses that the imperative need to improve compliance with IHL was recognized by all States … and that more can be done to address the current weaknesses and gaps in the implementation of IHL, including by non-State parties to armed conflict.116

Therefore, the intention to also address IHL compliance issues during NIACs and by NSAGs is clearly part of the process. However, discussions on this issue did not go in-depth during the consultation phase and no conclusions were drawn. In light of an absence of consensus among States, that process has now concluded and a Factual Report will be submitted to the 33rd International Conference.117

112 113 114 115 116 117

Ibid., p 26. ICRC and Swiss government 2013, at 2. ICRC and Swiss government 2015b, at 4. See also ICRC and Swiss government 2014, at 33. 32nd International Conference of the Red Cross and Red Crescent 2015, para 2. Ibid. Durham 2018.

380

A. Quintin and M.-L. Tougas

13.4.3 Criminalization of Humanitarian Aid Ensuring respect for the law by NSAGs obviously implies engaging in a dialogue with such groups. This dialogue may include a variety of activities, some of which were discussed in the second part of this chapter. Many criticisms against the idea of engaging with NSAGs on IHL have also already been mentioned. However, these criticisms have gained ground over the past decade in light of the so-called global ‘war’ against terrorism. Although the term ‘terrorist’ has no legal meaning under IHL,118 it is undeniable that the legal framework governing terrorism has an impact on humanitarian action, especially during NIACs. In particular, the UN, as well as regional organizations and individual States, have in recent years established and maintained lists of proscribed organizations and individuals considered to be terrorists or to provide assistance to terrorists.119 While this should have no impact whatsoever on the applicability and application of IHL, the consequences of a NSAG that is party to a NIAC being listed as a terrorist organization has recently threatened humanitarian work. At the international level, UN Security Council resolution 1373 of 2001 for instance requires States to Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons [involved in] terrorist acts or of entities controlled by such persons … [and also to] … refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts…120

As if often the case, the devil lies in the details, and in particular in the definition of some parts of the resolution. Indeed, one may wonder what would be included within the broad umbrella of ‘other related services’ or of ‘any form of support, active or passive’.

118

It is not the purpose of this chapter to discuss the definition of terrorism and its relation with IHL. For an excellent overview of that subject, see ICRC 2011a, pp 48–53; and ICRC 2015b, pp 16–21. 119 See for instance the various terrorist lists maintained by the UN, through Security Council Resolution 1267 (1999), concerning certain sanctions against the Taliban, and subsequent resolutions concerning sanction lists. https://www.un.org/sc/suborg/en/sanctions/1267/aq_sanctions_ list. Accessed 9 October 2017. The European Union uses the UN terrorist lists but also maintains its own independent list. See for instance Thorne 2006. Countries that maintain a list of terrorist organizations include Australia under the Security Legislation Amendment (Terrorism) Act 2002, India under the Unlawful Activities (Prevention) Act, the Russian Federation through its National Anti-Terrorism Committee, the United Kingdom under the Terrorism Act 2000, or the United States through a number of governmental mechanisms, including the US State Department list of Foreign Terrorist Organizations, the Terror Exclusion List or lists maintained directly by other branches of the government. 120 UN Security Council 2001, para 1(d).

13

Generating Respect for the Law by Non-State Armed Groups …

381

The threat also exists at the national level. Under US domestic legislation for instance, it is a federal crime to ‘knowingly provid[e] material support or resources to a foreign terrorist organization’.121 While such a provision may a priori seem harmless to humanitarian action, the danger resides in the definition of ‘material support’. And indeed, the current definition reads as follows: [T]he term ‘material support or resources’ means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.122

Some US associations respectively supporting the Kurdistan Worker’s Party (PKK) and the Sri Lankan Liberation Tigers of Tamil Eelan organizations—both considered terrorist organizations by the US—challenged the legislation on the basis that it violated their freedom of speech and freedom of association under the US Constitution’s First Amendment and was unconstitutionally vague. In 2009, the US Supreme Court in the case of Holder v. Humanitarian Law Project rejected their claim, and held that the material support statute was constitutional, including with regards to the challenged forms of support which included ‘training’, ‘expert advice or assistance’, ‘service’, and ‘personnel’.123 When one considers how ‘training’ and ‘expert advice or assistance’ are defined under US legislation, one realizes how this may be detrimental to humanitarian action.124 Applying these examples to the IHL respect-generating activities discussed in the previous sections of this chapter, it becomes evident that some of the ICRC’s work in this regard could potentially fall within the definition of ‘other related services’ or of ‘material support’. Although no action has so far been taken against the ICRC and its IHL dissemination activities, the mere existence of these regulations poses both a material and a legal threat. The material threat becomes obvious when imagining that dissemination activities carried out by the ICRC could be considered as criminal offences, prosecutable under the domestic legislation of several States. If acted upon, the latter have the potential of putting an end to the necessary work carried by the ICRC and similar organizations. But the threat is also a legal one, for it dismisses well-established provisions of IHL. Criminalizing IHL training activities carried out with NSAGs included in terrorist lists—as well as other humanitarian activities that benefit them—would ignore the ICRC’s right to

121 122 123 124

18 U. S. C. §2339B(a)(1). Ibid. US Supreme Court, Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), 130 S.Ct. 2705. On this issue, see Acquaviva 2010, pp 1001–1005.

382

A. Quintin and M.-L. Tougas

offer its services to all parties to NIACs.125 Not only does this impede humanitarian work, but also, in the ICRC’s own words, ‘could make it impossible for the ICRC to fulfil its treaty-based (and statutory) mandate in contexts where non-State armed groups party to a NIAC are designated “terrorist organizations”’.126 In addition, it would go against the obligation contained in Article 19 of AP II that IHL ‘shall be disseminated as widely as possible’. The potential criminalization of activities meant to ensure respect for the law by NSAGs illustrates a dangerous misunderstanding of the role of organizations like the ICRC. Beyond the political considerations necessarily present in the decision to label a group as ‘terrorist’, it remains implicit in the classification that the group concerned has engaged, or will engage, in unlawful activities, including conduct that may be in violation of IHL. Yet, this is precisely where the work of the ICRC is essential: it is specifically those groups that should hear about IHL and be convinced of the positive values of respecting the law. Criminalizing dissemination activities with so-called terrorist groups implies that the only acceptable activities of that nature would be with groups considered to be ‘non-terrorist’ or ‘safe’. Whether a NSAG is labelled as a terrorist or non-terrorist is not a question addressed by IHL. IHL established objective criteria to determine if a NSAGs can be considered or not as a party to a NIAC. The ICRC should be able to carry out its work and interactions on IHL training and dissemination to all NSAGs concerned by the application of IHL whether or not these groups have been labelled ‘terrorists’ under another legal regime. Indeed, would the ICRC really be doing its work if it is limited in its interactions to groups that already respect the law? What would be the impact of generating respect for IHL if the ICRC’s work was limited to these groups? In the recent years, however, the risk of criminalizing humanitarian activities through extensive anti-terrorism legislations has been acknowledged by some organizations. For instance, the European Parliament in its recent Directive on Combatting Terrorism, which states: ‘The provision of humanitarian activities by impartial humanitarian organisations recognised by international law, including international humanitarian law, do not fall within the scope of this Directive’.127

125

On the right of the ICRC to offer its services to all parties to a conflict, see Bugnion 2003, p 403 ff. 126 ICRC 2015b, p 21. 127 European Parliament 2017, para 38. See also NATO Parliamentary Assembly, Committee on the Civil Dimension of Security 2016, para 73 (‘It is also important to recall that in times of armed conflicts, impartial humanitarian organisations, such as the International Committee of the Red Cross, need to have contacts with non-state armed groups that might be designated as terrorist groups. Indeed, these humanitarian organisations are also working in territories under the control of some parties to armed conflicts which are also designated as terrorist groups in order to fulfil their mandate which is to assist and protect the victims of armed conflicts. Therefore, when adopting new legislation, lawmakers should pay attention not to criminalise the activities of impartial humanitarian organisations that are carried out in favour of victims of armed conflicts’).

13

Generating Respect for the Law by Non-State Armed Groups …

13.5

383

Conclusion

Engaging with NSAGs on IHL-related issues is at the core of ICRC’s mandate and the institution constantly strives to foster its dialogue with these actors. This means making sure that it has a strong understanding of the structures of NSAGs as well as of the mechanisms and means that may lead to better knowledge of IHL by their members and an increased respect for those rules. This is not only necessary to ensure the safety of its own activities, but is a legal entitlement that States have officially recognized. However, this has not prevented the rise of material and legal challenges to the ICRC’s work, be they the fact that its mandate is sometimes not well-understood, that maintaining the acceptance of IHL by NSAGs is a never-ending endeavour, or that the law itself may pose difficulties in its application. Nevertheless, as long as NIACs exist, maintaining a dialogue with NSAGs on the respect for IHL will remain necessary.

References 26th International Conference of the Red Cross and Red Crescent (1995) International Humanitarian Law: From Law to Action Report on the Follow-up to the International Conference for the Protection of War Victims, Report 95/C.I/2/2. https://www.icrc.org/eng/ resources/documents/resolution/26-international-conference-resolution-1-1995.htm. Accessed 7 October 2017. 31st International Conference of the Red Cross and Red Crescent (2011) Strengthening legal protection for victims of armed conflicts, Resolution 1, 31IC/11/R1. 32nd International Conference of the Red Cross and Red Crescent (2015) Strengthening compliance with international humanitarian law, Resolution 2, 32C/15/R2. Acquaviva G (2010) The Perils of Teaching and Practising International Law. Journal of International Criminal Justice 8:1001–1007. Address by General Jean-René Bachelet (2008) International Review of the Red Cross 870:211– 219. Al-Dawoody A (2017) IHL and Islam: An overview. http://blogs.icrc.org/law-and-policy/2017/03/ 14/ihl-islam-overview/. Accessed 6 October 2017. Almeghari R (2007) Red Cross training Gaza fighters in international humanitarian law. The Electronic Intifada. https://electronicintifada.net/content/red-cross-training-gaza-fightersinternational-humanitarian-law/7239. Accessed 6 October 2017. Assembly of States Parties (2002) Rules of Procedure and Evidence of the ICC, Official Records ICC-ASP/1/3. Bangerter O (2011) Reasons why armed groups choose to respect international humanitarian law or not. International Review of the Red Cross 882:353–384. Bangerter O (2012) Internal Control. Codes of Conduct within Insurgent Armed Groups. Small Arms Survey, Occasional Paper 31. http://www.smallarmssurvey.org/fileadmin/docs/BOccasional-papers/SAS-OP31-internal-control.pdf. Accessed 6 October 2017. Beerli C (2016) Modern Conflict: Address by the ICRC’s vice-president to SWIRMO. http://blogs. icrc.org/law-and-policy/2016/10/27/modern-conflict-swirmo-2016/. Accessed 6 October 2017. Bugnion F (1995) Red Cross Law. International Review of the Red Cross 308. https://www.icrc. org/eng/resources/documents/article/other/57jmr8.htm. Accessed 5 October 2017.

384

A. Quintin and M.-L. Tougas

Bugnion F (2003) The International Committee of the Red Cross and the Protection of War Victims. ICRC/Macmillan, Geneva. Durand R (2012) Henry Dunant 1828–1910, 2nd edn. Editions Slatkine, Geneva. Durham H (2018) Strengthening Compliance with IHL: Disappointment and hope. https://blogs.icrc. org/law-and-policy/2018/12/14/strengthening-compliance-with-ihl-disappointment-and-hope/. Accessed 14 October 2019. European Parliament (2017) Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA. Geneva Call (n.d.) https://genevacall.org. Accessed 6 October 2017. Geneva Call (n.d.) Their Words. Directory of Armed Non-State Actors Humanitarian Commitments, Geneva Call. http://theirwords.org/pages/home. Accessed 6 October 2017. Giladi R, Ratner S (2015) The Role of the International Committee of the Red Cross. In: Clapham A, Gaeta P, Sassòli M (eds) The 1949 Geneva Conventions. A Commentary. Oxford University Press, Oxford, pp 525–547. Health Care in Danger (n.d.) It’s a Matter of Life and Death. http://healthcareindanger.org/hcidproject/. Accessed 13 October 2017. Heffes E, Kotlik M (2014) Special agreements as a means of enhancing compliance with IHL in non-international armed conflicts: An inquiry into the governing legal regime. International Review of the Red Cross 895–896:1195–1224. Henckaerts J-M (2005) Study on customary international humanitarian law: A contribution to the understanding and respect for the rule of law in armed conflict. International Review of the Red Cross 857:175–212. International Commission of Inquiry on Darfur (2005) Report to the Secretary-General, Geneva, 25 January 2005. http://www.un.org/News/dh/sudan/com_inq_darfur.pdf. Accessed 18 October 2017. International Committee of the Red Cross. Study on Customary IHL. https://ihl-databases.icrc.org/ customary-ihl/eng/docs/home. Accessed 17 October 2017. International Committee of the Red Cross. IHL in Action. Respect of the Law on the Battlefield. Implementation Mechanisms. https://ihl-in-action.icrc.org/topic/Implementation% 20mechanisms. Accessed 12 October 2017. International Committee of the Red Cross (2004) The Roots of Behaviour in War: Understanding and Preventing IHL Violations. ICRC, Geneva. International Committee of the Red Cross (2005) The conflict in Upper Silesia (1921). https:// www.icrc.org/eng/resources/documents/misc/68uhpp.htm. Accessed 5 October 2017. International Committee of the Red Cross (2007) Integrating the Law. ICRC, Geneva. https:// www.icrc.org/eng/resources/documents/publication/p0900.htm. Accessed 6 October 2017. International Committee of the Red Cross (2008a) Annual Report 2007. https://www.icrc.org/eng/ resources/documents/annual-report/icrc-annual-report-2007.htm. Accessed 12 October 2017. International Committee of the Red Cross (2008b) Increasing Respect for International Humanitarian Law in Non-international Armed Conflicts. ICRC, Geneva. International Committee of the Red Cross (2009a) ICRC: Its Mission and Work. ICRC, Geneva. https://www.icrc.org/eng/assets/files/other/icrc_002_0963.pdf. Accessed 12 October 2017. International Committee of the Red Cross (2009b) Under the protection of the palm: wars of dignity in the Pacific. https://www.icrc.org/eng/assets/files/other/wars-of-dignity-pacific-2009. pdf. Accessed 6 October 2017. International Committee of the Red Cross (2010) Prevention Policy. ICRC, Geneva. International Committee of the Red Cross (2011a) International Humanitarian Law and the challenges of contemporary armed conflicts. Report presented at the 31st International Conference, Geneva, October 2011, 31IC/11/5.1.2. International Committee of the Red Cross (2011b) A collection of codes of conduct issued by armed groups. International Review of the Red Cross 882:483–501. International Committee of the Red Cross (2015a) Annual Report 2014 https://www.icrc.org/en/ document/ICRC-annual-report-2014. Accessed 12 October 2017.

13

Generating Respect for the Law by Non-State Armed Groups …

385

International Committee of the Red Cross (2015b) International humanitarian law and the challenges of contemporary armed conflicts. Report presented at the 32nd International Conference, Geneva, December 2015, 32IC/15/11. International Committee of the Red Cross (2015c) Safeguarding the Provision of Health Care: Operational Practices and Relevant International Humanitarian Law Concerning Armed Groups. ICRC, Geneva. International Committee of the Red Cross (2015d) Strengthening international humanitarian law protecting persons deprived of their liberty. Concluding report, Geneva, October 2015, 32IC/ 15/19.1. International Committee of the Red Cross (2016a) Roots of Behaviour in War Revisited, Conference Panel. https://www.icrc.org/en/document/roots-behaviour-war-revisited-0. Accessed 7 October 2017. International Committee of the Red Cross (2016b) Annual Report 2015. https://www.icrc.org/en/ document/annual-report-2015-icrc. Accessed 12 October 2017. International Committee of the Red Cross (2016c) Commentary on the First Geneva Convention. https://ihl-databases.icrc.org/ihl/full/GCI-commentary. Accessed 6 October 2017. International Committee of the Red Cross (2016d) ICRC in the Philippines’ facts and figures (January–May 2016). https://www.icrc.org/en/document/philippines-our-humanitarian-actionin-the-philippines-jan-to-may-2016. Accessed 12 October 2017. International Committee of the Red Cross (2017) Annual Report 2016. https://www.icrc.org/en/ document/annual-report-2016. Accessed 12 October 2017. International Committee of the Red Cross (2018) The Roots of Restraint in War. ICRC, Geneva. International Committee of the Red Cross and Swiss government (2015a) Strengthening compliance with international humanitarian law. Concluding report, Geneva, October 2015, 32IC/15/19.2. International Committee of the Red Cross and Swiss government (2015b) Chair’s conclusions, Fourth Meeting of States on Strengthening Compliance with International Humanitarian Law (IHL), Geneva, April 2015. International Committee of the Red Cross and Swiss government (2013) Chair’s conclusions, Second Meeting of States on Strengthening Compliance with International Humanitarian Law (IHL), Geneva, June 2013. International Committee of the Red Cross and Swiss government (2014) Preparatory Discussion in view of the Fourth Meeting of States on Strengthening Compliance with IHL, Background document, Geneva, October 2014. International Committee of the Red Cross (2014), Internment in Armed Conflict: Basic Rules and Challenges, Opinion Paper. https://www.icrc.org/en/document/internment-armed-conflictbasic-rules-and-challenges. Accessed 15 March 2019. Interview with Ali Ahmad Jalali (2011) International Review of the Red Cross 882:279–286. La Rosa A-M, Wuerzner C (2008) Armed groups, sanctions and the implementation of international humanitarian law. International Review of the Red Cross 870:327–341. Maurer P (2016) International Conference on Islam and IHL — Statement by the ICRC. https:// www.icrc.org/en/document/speech-icrc-president-international-conference-islam-and-ihl. Accessed 12 October 2017. Mechanism for International Criminal Tribunals (2016) Rules of Procedure and Evidence, MICT/ 1/Rev.2. Melzer N (2016) International Humanitarian Law: A comprehensive introduction. ICRC, Geneva. Munir M (2011) The Layha for the Mujahideen: an analysis of the code of conduct for the Taliban fighters under Islamic law. Annex. International Review of the Red Cross 881:103–120. NATO Parliamentary Assembly, Committee on the Civil Dimension of Security (2016) General Report, Enhancing Euro-Atlantic Counter-Terrorism Capabilities and Cooperation, doc. 157 CDS 16 E bis, 20 November 2016. Nishat N (2015) The Right of Initiative of the ICRC and Other Impartial Humanitarian Bodies. In: Clapham A, Gaeta P, Sassòli M (eds) The 1949 Geneva Conventions. A Commentary. Oxford University Press, Oxford, pp 495–508.

386

A. Quintin and M.-L. Tougas

Palmieri D (2012) An institution standing the test of time? A review of 150 years of the history of the International Committee of the Red Cross. International Review of the Red Cross 888:1273–1298. Pejic J (2016) Strengthening Compliance with IHL: the ICRC-Swiss Initiative. International Review of the Red Cross 98(1):315–330. Provost R (2011) The move to substantive equality in international humanitarian law: a rejoinder to Marco Sassòli and Yuval Shany. International Review of the Red Cross 882:437–442. Rudoren J, al Waheidiaug M (2015) Red Cross Offers Workshops in International Law to Hamas. The New York Times, 15 August 2015. https://www.nytimes.com/2015/08/16/world/ middleeast/red-cross-offers-workshops-in-international-law-to-hamas.html. Accessed 6 October 2017. Sassòli M (2011) Introducing a sliding-scale of obligations to address the fundamental inequality between armed groups and states? International Review of the Red Cross 882:426–431. Sassòli M, Bouvier A, Quintin A (n.d.) Former Yugoslavia Special Agreements between the Parties to the Conflicts. https://casebook.icrc.org/case-study/former-yugoslavia-specialagreements-between-parties-conflicts. Accessed 6 October 2017. Somer J (2007) Jungle justice: passing sentence on the equality of belligerents in non-international armed conflict. International Review of the Red Cross 867:655–690. Special Tribunal for Lebanon (2017) Rules of Procedure and Evidence, STL-BD-2009-01-Rev.9. Terry F (2011) The International Committee of the Red Cross in Afghanistan: reasserting the neutrality of humanitarian action. International Review of the Red Cross 881:173–188. Thorne K (2006) Terrorist designation in the European Union. https://www.hdcentre.org/wpcontent/uploads/2016/07/TerroristdesignationintheEuropeanUnion-June-2006.pdf. Accessed 9 October 2017. UN Security Council (2001) UN Doc. S/RES/1373 (2001).

Anne Quintin is the Head of the Advisory Service on International Humanitarian Law at the International Committee of the Red Cross. Marie-Louise Tougas is working as IHL expert for the Panel of experts on Yemen of the UN Sanctions Committee established pursuant to UNSC Resolution 2140. From 2011 to 2017, she worked as a legal adviser for the International Committee of the Red Cross. The views expressed in this chapter are solely those of the authors and do not necessarily reflect those of their respective organizations.

Chapter 14

Compliance with Humanitarian Rules on the Protection of Children by Non-State Armed Groups: The UN’s Managerial Approach Marcos D. Kotlik

Contents 14.1 Introduction...................................................................................................................... 14.2 Understanding the CAAC Framework as a Predominantly Managerial Approach.......................................................................................................................... 14.2.1 Identification of the Legal Regime .................................................................... 14.2.2 A Dialogue-Based Approach: A Path to Identify and Incentivize NSAGs’ Willingness to Comply with International Law................................................. 14.3 The Main Elements of a Managerial Approach in the CAAC Framework................... 14.3.1 Transparency: Bringing in Multiple Stakeholders ............................................. 14.3.2 Dispute Settlement: A Closer Look at Action Plans......................................... 14.3.3 Capacity Building: Generating the Tools to Transform Commitments into Concrete Action .......................................................................................... 14.4 Limitations Within and Beyond the Managerial Approach ........................................... 14.4.1 Limitations Within the Managerial Approach ................................................... 14.4.2 Limitations Beyond the Managerial Approach: The UN Security Council’s Coercive Tool ..................................................................................................... 14.5 Final Remarks.................................................................................................................. References ..................................................................................................................................

388 390 392 397 403 403 405 411 413 413 416 418 420

M. D. Kotlik (&) School of Law, University of Buenos Aires (UBA), Buenos Aires, Argentina e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 E. Heffes et al. (eds.), International Humanitarian Law and Non-State Actors, https://doi.org/10.1007/978-94-6265-339-9_14

387

388

M. D. Kotlik

Abstract The framework created by the United Nations (UN) to address the situation of children affected by armed conflicts relies on a Monitoring and Reporting Mechanism implemented by personnel on the ground and supervised by the UN Office of the Special Representative of the Secretary-General for Children and Armed Conflict, with the endorsement of the UN Security Council. It produces information that may be employed by multiple actors and aims to ensure compliance with basic humanitarian rules and reduce grave violations suffered by children. States and non-State armed groups that are listed as violators are encouraged to engage in dialogue with UN personnel on the ground towards the adoption of action plans that will lead them to compliance. This chapter examines this framework as a predominantly managerial approach to non-compliance, highlighting its positive features as well as its shortcomings.







Keywords United Nations Children Armed conflict Groups Compliance Managerial approach




14.1





Non-State Armed

Introduction

Around the world, hundreds of millions of children are directly or indirectly affected by armed conflicts,1 including more than 300,000 estimated child soldiers.2 The most serious violations against them are not only committed by States, but also by non-State armed groups (NSAGs) involved in dozens of non-international armed conflicts (NIACs).3 After the Second World War, and especially in the last few decades, this issue has not been ignored by international law. International humanitarian law (IHL) and international human rights law (IHRL) treaties have established that special respect

1

See Baghat et al. 2018; Save the Children 2018, pp 15–17. The University of Iowa Center for Human Rights 2016, p 9. 3 See UN Secretary-General 2017, para 5 (stating that in 2016 alone there were at least 4,000 verified violations against children by government forces and more than 11,500 verified violations by NSAGs); and UN Secretary-General 2018, para 5 (highlighting the increase in 2017, with 6,000 verified violations by government forces and more than 15,000 by NSAGs). On the increasing amount of NIACs and NSAGs, see Bellal 2018, pp 29–31; ICRC 2018, pp 13–14. 2

14

Compliance with Humanitarian Rules on the Protection …

389

and protection is owed to children affected by armed conflict,4 and that they must not be recruited into State armed forces or NSAGs, nor allowed to take part in hostilities.5 Moreover, the Rome Statute of the International Criminal Court (ICC) stipulates that it is a war crime to conscript, enlist or use children under the age of fifteen to participate in hostilities, both in international armed conflicts (IACs) and in NIACs.6 In addition, several soft law instruments have addressed the challenges concerning the protection of children during armed conflict.7 Despite these important developments, ensuring compliance with international rules remains a paramount challenge. In the last twenty years, the United Nations (UN) has progressively devised a framework to address the situation of children affected by armed conflicts (CAAC). In 1997, the UN Secretary-General appointed for the first time a Special Representative for Children and Armed Conflict (SRSG), upon recommendation of the General Assembly.8 Soon after, the UN Security Council included the topic in its agenda and, in 2004, started calling upon States and NSAGs parties to armed

4 See e.g. Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the protection of victims of international armed conflicts, opened for signature 8 June 1977, 1125 UNTS 3, entered into force 7 December 1978 (AP I), Article 77; Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the protection of victims of non-international armed conflicts, opened for signature 8 June 1977, 1125 UNTS 609, entered into force 7 December 1978 (AP II), Article 4(3); Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3, entered into force 2 September 1990 (CRC), Article 38; African Charter on the Rights and Welfare of the Child, opened for signature 11 July 1990, CAB/LEG/24.9/49 (1990), entered into force 29 November 1999, Articles 2 and 22. 5 See e.g. AP I, above n. 4, Article 77(2); AP II, above n. 4, Article 4(3)(c); CRC, above n. 4, Articles 38(2)–(3); Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, opened for signature 25 May 2000, 2173 UNTS 222, entered into force 12 February 2002 (Optional Protocol), Articles 6(3) and 7(1); African Charter on the Rights and Welfare of the Child, above n. 4, Articles 2 and 22(2); Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, opened for signature 17 June 1999, ILO No. 182, entered into force 19 November 2000, Articles 1 and 3. It should be noted that the age-limit for recruitment is not uniform in international law. While AP I, AP II and the CRC establish the minimum age at 15, under the Optional Protocol and the African Charter, States must ensure that persons under the age of 18 are not compulsorily recruited into their armed forces, while armed groups must not recruit such persons under any circumstances. 6 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3, entered into force 1 July 2002, Articles 8(2)(b)(xxvi) and 8(2)(e)(vii). See also Statute of the Special Court for Sierra Leone, Annex to the Agreement between the United Nations and the government of Sierra Leone on the establishment of a Special Court for Sierra Leone, opened to signature 16 January 2002, 2178 UNTS 137, entered into force 12 April 2002, Article 4(c). 7 See e.g. The Paris Principles 2007; The Safe Schools Declaration 2015; The Vancouver Principles on Peacekeeping and the Prevention of the Recruitment and Use of Child Soldiers 2017. 8 UN General Assembly 1996b, para 35. The General Assembly’s recommendation followed the publication of ‘Impact of Armed Conflict on Children’, a report by Graça Machel—an independent expert appointed in 1994 by the Secretary-General pursuant to UN General Assembly resolution 48/157—which took note of a recommendation by the UN Committee on the Rights of the Child. See UN General Assembly 1993; UN General Assembly 1996a.

390

M. D. Kotlik

conflicts to address violations through action plans.9 A year later, the UN Security Council endorsed a Monitoring and Reporting Mechanism (MRM) proposed by the Secretary-General,10 and created a Working Group on CAAC—composed of all its members—in charge of reviewing MRM reports and making recommendations to the Security Council on possible measures to promote the protection of CAAC.11 This framework was intended to redirect energies from the elaboration of standards to ensuring compliance with them, bringing about the ‘era of application.’12 This chapter examines the CAAC framework as a predominantly managerial approach to non-compliance—it is mostly based on dialogue and cooperation, but complemented by a coercive tool. The goal is to identify those features that may help ensuring compliance with international rules by NSAGs and also to highlight some important shortcomings. This chapter’s main contention is that the CAAC framework is, overall, an appropriate strategy to address non-compliance by NSAGs, but it is subject to institutional limitations, both within and beyond its managerial approach, which curb the possibilities for its success. Managerial approaches are usually linked to multilateral treaty regimes based on States’ voluntary agreement to comply with a series of international obligations. Thus, Sect. 14.2 identifies the legal regime underlying the CAAC framework and explains how NSAGs may also be willing to abide by international rules. Section 14.3 then examines how the framework’s design reflects the essential features of a managerial strategy, namely, that it fosters transparency, provides for dispute settlement, and enables capacity building. Section 14.4 analyzes the framework’s limitations.

14.2

Understanding the CAAC Framework as a Predominantly Managerial Approach

The CAAC framework focuses on six grave violations committed against children in times of armed conflict: killing or maiming; recruiting or using child soldiers; attacks against schools or hospitals; rape or other forms of grave sexual violence; abduction; and denial of humanitarian access.13 For the most part, the framework relies on the MRM, which has the purpose of collecting and providing ‘timely, objective, accurate and reliable information’14 on said violations. The MRM operates on three levels: information-gathering at the country level; review and integration of information and preparation of reports at the UN headquarters level; 9

UN Security Council 2004, para 5(a). UN Security Council 2005, para 3. 11 Ibid., para 8. 12 UN Secretary-General 2005, para 59. 13 UN Secretary-General 2005, para 68. 14 UN Security Council 2005, para 2(a). 10

14

Compliance with Humanitarian Rules on the Protection …

391

and ‘destinations for action’, that is, multiple actors in charge of taking measures to ensure compliance.15 The establishment of the MRM did not entail the creation of new organs or agencies, since it involves existing bodies and entities,16 including diverse UN actors, such as the UN International Children’s Emergency Fund (UNICEF), the UN Development Programme and the UN Department of Peacekeeping Operations; regional organizations; governments; NGOs and other civil society organizations. With the information produced by the MRM, the Secretary-General publishes annual reports, which contain country-specific information on the parties’ performance, and two annexes listing the parties that commit one or more of those violations. Those parties—both States and NSAGs—are called upon by the UN Security Council to engage in dialogue with UN actors on the ground, in order to develop and adopt action plans that will lead to compliance with their international obligations17 through the undertaking of specific and time-bound steps. Certainly, the Security Council may also adopt other measures within its mandate, and the Working Group on CAAC has even developed a ‘toolkit’ with possible types of direct action or recommendations.18 In some cases, this may entail the establishment of sanctions against States, NSAGs and individuals. This section begins to unfold this framework as a predominantly managerial approach to non-compliance. In the mid-1990s, Chayes and Handler Chayes19 suggested that while much attention is paid to sanctions as the way to achieve compliance with international law, most multilateral regulatory agreements actually adopt managerial strategies, which are focused on cooperation and problem-solving, prioritizing dialogue among States.20 Chayes and Handler Chayes observed that many international treaties addressing complex issues, such as the Nuclear Non-Proliferation Treaty and the General Agreement on Tariffs and Trade, require this type of cooperative action among States over time. In their view, since States are parties to those treaties, their willingness to comply with their obligations can be presumed; non-compliance, then, is frequently explained by other factors.21 Thus, understanding the CAAC framework as a managerial strategy requires first and foremost the identification of the relevant legal regime, that is, of the concrete obligations that the parties must comply with. It also entails accepting—contrary to what is often believed—that NSAGs may in fact be willing to abide by that regime.

15

UN Secretary-General 2005, para 67. Ibid., para 59. 17 See e.g. UN Security Council 2003, para 4; UN Security Council 2004, para 5; UN Security Council 2005, para 7. 18 UN Working Group of the Security Council on children and armed conflict 2006a, p 4; UN Security Council 2006. 19 The analysis of managerial approaches throughout this chapter follows Chayes and Handler Chayes 1995. 20 See Chayes and Handler Chayes 1995, p 3. 21 Ibid., pp 3–22. 16

392

M. D. Kotlik

Happold, who draws a comparison between the CAAC framework and non-compliance mechanisms in the field of international environmental law,22 points out that the framework lacks clarity as to the legal obligations incumbent upon NSAGs, and that they have not consented to the MRM.23 This section addresses these complexities. The first sub-section suggests that the applicable legal regime can be identified in UN Security Council resolutions and reports by the Secretary-General. The second sub-section explains why and to what extent this framework can rely on and incentivize NSAGs’ willingness to comply with international rules.

14.2.1 Identification of the Legal Regime The identification of the legal regime is important for two reasons. First, because it allows us to establish the relevant conduct that is sought to be regulated, framing it as duties to act in a certain way or to abstain from committing certain actions. Second, because outlining such conduct as legal obligations is usually what explains why the parties to the regime are expected to perform them. At first sight, it is not completely clear what the UN Security Council intends to promote compliance with: its resolutions on CAAC consistently avoid making any legal determination as to the qualification of the conflicts referred to in the Secretary-General’s reports.24 This prevents inferring if the applicable IHL rules are those regulating IACs or NIACs or if IHL is applicable at all. Further, the Security Council’s practice of simultaneously referring to IHL and IHRL may lead to confusion between both regimes.25 Indeed, the MRM purposely makes no distinction between the protections granted by IHL and by IHRL.26 The Secretary-General’s reports mention international instruments that provide criteria to assess the parties’ conduct, including the Convention on the Rights of the Child (CRC), its Optional Protocol on the Involvement of Children in Armed Conflict, Additional Protocol II to the Geneva Conventions (GCs), and the ICC Statute. Other sources, such as national legislation and peace agreements, are also considered relevant.27 Moreover, when explaining the criteria used for listing and delisting parties, the Secretary-General affirmed that: 22

Happold 2010, pp 373–375. Ibid., pp 373–374. 24 UN Security Council 2005, preamble; UN Security Council 2009, preamble; UN Security Council 2011, preamble; UN Security Council 2012, preamble; UN Security Council 2015, preamble. 25 Klosterman 2015, p 327. 26 Happold 2010, p 368. 27 See e.g. UN Secretary-General 2002, paras 30–31; UN Secretary-General 2005, paras 69–73; UN Secretary-General 2007, para 8; UN Secretary-General 2009, para 1; UN Secretary-General 2010, para 2; UN Secretary-General 2011, para 2. 23

14

Compliance with Humanitarian Rules on the Protection …

393

[the UN Security Council’s] reference to acts in contravention of applicable international law suggests that the acts in question are not merely crimes under the national law of the State where the crime was committed, but rather acts that amount to a violation of applicable international law, including international humanitarian or human rights law.28

In addition, in its latest resolutions on the topic, when calling on the parties to conflicts to comply with their international obligations, the Security Council has mentioned the CRC and its Optional Protocol, the four GCs and both Additional Protocols, and the ICC Statute.29 Most importantly, the Security Council has consistently referred to the six aforementioned conducts—killing or maiming; recruiting or using child soldiers; attacks against schools or hospitals; rape or other forms of grave sexual violence; abduction; and denial of humanitarian access—as violations of international obligations, sometimes specifying that they constitute violations of IHL and IHRL.30 According to the ICRC’s Study on Customary IHL, it can also be argued that such conducts are also prohibited by customary international law. The prohibition on killing or maiming, and of attacking schools or hospitals are specific applications of the principle of distinction.31 Similarly, the prohibition of abduction is also an application of this principle, although other rules, such as the prohibition of hostage-taking and the prohibition of enforced disappearances, may also be relevant,32 at least in some cases. Denial of humanitarian access is also considered to be prohibited, inasmuch as the parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, provided it is impartial and conducted without adverse distinction, subject to their right of control.33 Rape and other forms of sexual violence are specifically prohibited, and protection against them is an integral part of the special protection to which children affected by armed conflicted are entitled.34 The prohibition of recruitment and use of child soldiers, however, presents some nuances, given the divergences about the age-limit established by different international instruments and domestic legislation. There seems to be agreement, at least, on the establishment of the minimum age at 15.35 Thus, when dealing with this violation, the SRSG has explained that although

28

UN Secretary-General 2010, para 173. UN Security Council 2011, preamble; UN Security Council 2014, preamble, para 5; UN Security Council 2015, preamble; UN Security Council 2018, preamble. 30 UN Security Council 2005, paras 1, 2(a), 5, 15; UN Security Council 2009, paras 1, 3, 5; UN Security Council 2011, paras 1, 3, 4, 6, 11; UN Security Council 2012, para 2; UN Security Council 2014, paras 1, 17, 18; UN Security Council 2015, paras 1, 3, 4, 7; UN Security Council 2018, paras 1, 18. 31 ICRC n.d. Customary IHL Database, rules 1 and 7. 32 Ibid., rules 96 and 98. 33 Ibid., rule 55. 34 Ibid., rules 93 and 135. 35 Ibid., rules 136 and 137. See also above n. 5. 29

394

M. D. Kotlik

15 is the age limit under IHL, IHRL forbids recruitment or use of people under 18 years-old.36 In sum, the conduct that is relevant for the CAAC framework does not emerge from a single treaty, rather, it originates from a variety of treaties and from customary international law. Therefore, a regulatory regime on the protection of CAAC may be identified. Still, the challenge is to determine whether this provides a basis to hold that NSAGs are in fact obliged not to perform those six conducts under international law. In the realm of IHL, it is generally accepted that NSAGs are directly addressed and have specific obligations.37 In fact, Common Article 3 imposes equal obligations on States and NSAGs, which means that at least the same basic rules apply to both.38 Several theories try to explain why NSAGs are bound by humanitarian rules.39 Traditionally, it has been held that it is because they have a territorial link to a State which has accepted certain international obligations or because they act under the domestic legislative jurisdiction of a State which has accepted said obligations.40 These explanations have received diverse critiques,41 including that they may entail a lack of ownership on the part of NSAGs with respect to the obligations.42 Indeed, Ryngaert has argued that NSAGs should be offered the opportunity to express their consent in order for IHL to become binding and

36

Office of the Special Representative of the Secretary-General for Children and Armed Conflict 2013, pp 11–12. It should be noted that, consequently, the criteria employed to list parties as violators of the prohibition on the recruitment and use of child soldiers may vary from State to State. The Secretary-General applies the 15 years-old limit as the minimum international standard to which all States and NSAGs are held. In States that have ratified the Optional Protocol, however, both States and NSAGs are held to the 18 years-old limit. See UN Secretary-General 2002, paras 30–31. That is how the reference to the ‘applicable law’ in the context of the recruitment and use of child soldiers should be understood in the Secretary-General’s reports. See above n. 27–30, and accompanying text. Notwithstanding, the SRSG, in cooperation with UNICEF and UNHCR conducted a global campaign (which ended in 2012) called ‘Zero under 18’, encouraging ratification of the Optional Protocol. 37 See e.g. ICRC 2016, paras 503–505; Sandoz et al. 1987, p 1372, fn 18; Moir 2002, pp 65–67; Zegveld 2002, p 152; Sassòli 2003, p 6. 38 Pejic 2011, pp 197–198; Moir 2002, pp 52–88; Somer 2007, p 661; International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Tadić, Decision on Jurisdiction (Appeals Chamber), 2 October 1995, Case No. IT-94-1-AR72, paras 96–126. 39 See ICRC 2016, paras 507–508. 40 See Pictet 1952, p 51; Pictet 1960, p 34. 41 See e.g. Henckaerts 2003, pp 126–127; Moir 2002, pp 54–56; Somer 2007, p 661; Cassese 1981, pp 429–430; d’Aspremont and de Hemptinne 2012, pp 98–99; Heffes and Kotlik 2014, pp 1202–1203. 42 See Henckaerts 2003, pp 126–127; Moir 2002, pp 54–55; Heffes and Kotlik 2014, p 1202. In this context, ownership of rules may be understood as ‘the capacity and willingness of actors engaged in armed conflicts to set and/or take responsibility for the respect of norms intended to protect civilians as well as other humanitarian norms applicable in armed conflict’. Bellal and Casey-Maslen 2011, p 177. See also Geneva Academy of International Humanitarian Law and Human Rights 2011, p 6; Saul 2016, p 5; Kassoti 2016, p 8.

14

Compliance with Humanitarian Rules on the Protection …

395

effective on the ground, and that this can be done through different methods and instruments.43 Yet debates on this issue are far from settled, and they entail further complexities in the case of IHRL rules.44 It is important to take into account that references to specific IHL and IHRL obligations in the case of the CAAC framework are made within a particular regime, namely, that of the UN Security Council and the UN Charter. Thus, it should be analyzed whether obligations that bind NSAGs may originate from the Security Council’s resolutions. The authority of the UN Security Council to address non-State actors is nowadays generally uncontested and there is an established practice in that sense.45 In particular, when referring to the IHL and IHRL obligations of NSAGs and States, the Security Council has seemingly made no legal distinction between both types of actors.46 In the case of UN Security Council decisions adopted under Chapter VII of the UN Charter, several explanations as to their binding nature upon NSAGs have been advanced.47 Some of them find support in the Advisory Opinion of the International Court of Justice (ICJ) on the Legality of the Declaration of Independence of Kosovo, in particular its reasoning concerning the legal relevance of UN Security Council resolution 1244 (1999).48 In the case under study, even though the Security Council has considered the protection of children in armed conflict as an integral component of the maintenance of international peace and security,49 it is not self-evident that its resolutions on CAAC are binding decisions under Chapter VII. In this regard, it is useful to recall the ICJ’s approach with regard to the binding effect of Security Council resolutions: The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25 [of the UN Charter], the question whether they have been in fact exercised is to

43

Ryngaert 2011, pp 285, 288–289. See Fortin 2017, pp 152–173, 209–284, 323–356; Murray 2016, pp 157–202; Henckaerts and Wiesener, Chap. 8. Although further exploration of this issue would exceed the scope of the chapter, it is particularly relevant when applying the Optional Protocol to NSAGs. See above n. 36 and accompanying text. 45 See generally Kooijmans 1998; Zegveld 2002, p 160; Bolani 2003, pp 430–433; Miretzki 2009; Heffes et al. 2015, pp 42–43. 46 Heffes et al. 2015, pp 47–50. 47 Ibid., pp 60–65. 48 See ICJ, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 22 July 2010, ICJ Doc 2010 General List No 141 (Advisory Opinion on Kosovo), paras 58–59, 85–120 (especially paras 116–118 examining whether UN Security Council resolution 1244 addressed actors other than States and international organizations). 49 See UN Security Council 2005, preamble; UN Security Council 2009, para 13, preamble; UN Security Council 2011, para 18, preamble; UN Security Council 2012, preamble; UN Security Council 2014, preamble; UN Security Council 2015, preamble; UN Security Council 2018, preamble. 44

396

M. D. Kotlik

be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council.50

An analysis of the substance and framing of the UN Security Council’s resolutions on CAAC, however, is far from conclusive. As explained by Field, some CAAC resolutions reaffirm pre-existing obligations of Member States under international law, others crystalize these obligations within the context of a threat to international peace and security, and others establish additional obligations aimed at conducing compliance with prior resolutions and associated applicable international law.51 In her view, at the most, the Security Council’s intention to consider targeted measures for non-compliance52 may provide a legal basis for arguing that ‘selected provisions may extend the legal protection of children by creating binding legal obligations on designated actors (member states and non-state).’53 But unambiguous language (i.e. ‘decides’) is only employed when the resolutions address UN organs or agencies and, as a whole, the CAAC resolutions appear to be non-binding recommendations framed with particular strength.54 It is difficult to affirm, then, that these resolutions create binding legal obligations for NSAGs under Chapter VII of the UN Charter. This does not mean, however, that the UN Security Council’s resolutions on CAAC do not have legal effects. Indeed, Field submits that the resolutions possess de facto normative power stemming mainly from agreement over substance. That is, even considered as non-binding soft law instruments, they provide material evidence on the attitude of States which affects the interpretation of treaties and the formation of customary international law.55 This de facto normative power, Field explains, increases because new resolutions re-affirm and develop provisions included in prior ones, and they progressively acquire higher levels of determinacy

50 ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 21 June 1971, ICJ Reports 1971, p 53, para 114. See also Advisory Opinion on Kosovo, above n. 48, para 117 (affirming the relevance of such an approach not only to determine the binding effect of UN Security Council resolutions, but also to identify for whom they intend to create binding legal obligations) and para 94 (explaining that Articles 31 and 32 of the Vienna Convention on the Law of Treaties may provide guidance to interpret UN Security Council resolutions, but that other factors must be taken into account, including statements by UN Security Council members at the time of adoption, other UN Security Council resolutions on the same issue, and the subsequent practice of relevant UN organs and of States affected by those resolutions). In that case, however, the interpretation was rather aimed at establishing the content and addressees of the binding legal obligations created by resolution 1244 (1999), since the ICJ noted that the resolution was expressly adopted on the basis of Chapter VII. 51 Field 2013, pp 130–131. 52 See below Sect. 14.4.2. 53 Field 2013, p 132. 54 Ibid. 55 Ibid., pp 133–134.

14

Compliance with Humanitarian Rules on the Protection …

397

(that is, a higher degree of obligation, precision and delegation).56 As an example, she compares the Security Council’s stance on the recruitment and use of children in armed conflict: while the first CAAC resolution condemned it as a violation of international law, calling upon the parties concerned to comply with their obligations under international law, ‘[f]ive resolutions later, the Council had established a mechanism for identifying the parties to armed conflict violating this provision of international law, developed a framework of obligations to be implemented by these parties to further their related obligations under international law, with corresponding monitoring and enforcement mechanisms.’57 As will become clear throughout this chapter, said evolution has taken place with regard to five of the six violations encompassed by the CAAC framework. As a matter of law, such an approach does not provide an alternative explanation as to the binding nature of UN Security Council resolutions upon NSAGs, nor on the binding nature of customary or treaty IHL or IHRL obligations. But as a matter of fact, it helps to understand how the legal regime on CAAC operates, even if NSAGs are not parties to the UN Charter or members of the various UN institutions. The CAAC framework’s operation depends on its continuous development by the Security Council and, to a great degree, on the cooperation of States and NSAGs that are parties to armed conflicts. As explained by Happold, ‘[i]t is not formal consent to the procedure which is important but willingness to cooperate.’58 Although some theoretical discussions may remain unsolved, the CAAC framework seems appropriate from a practical perspective. The next sub-section argues that NSAGs may be inclined to comply with humanitarian rules, and that the MRM may play a crucial role in sparking and enhancing such an inclination.

14.2.2 A Dialogue-Based Approach: A Path to Identify and Incentivize NSAGs’ Willingness to Comply with International Law Managerial approaches assume that States are willing to abide by the treaty provisions they have bound themselves to. Chayes and Handler Chayes consider that non-compliance is likely due to ‘(1) ambiguity and indeterminacy of treaty language, (2) limitations on the capacity of parties to carry out their undertakings, and (3) the temporal dimension of the social, economic, and political changes

56 Ibid., p 134. In this regard, Field adopts the theoretical framework devised by Abbot and Snidal, which blurs the distinction between hard law and soft law by placing both categories at opposite ends of a continuum, where three dimensions—obligation, precision, delegation—determine whether a particular arrangement is closer to one or the other. See Abbot and Snidal 2000, pp 421–424. 57 Field 2013, p 135. 58 Happold 2010, p 375.

398

M. D. Kotlik

contemplated by regulatory treaties.’59 Consequently, they argue in favor of managerial approaches as a way to directly address such factors within regulatory regimes. As explained in the previous sub-section, NSAGs are not parties to treaty regimes and there is no single explanation that has been universally accepted as to why they are bound by international obligations. Still, when presenting the MRM to the UN Security Council, the Secretary-General considered that it would only be effective if it could influence the conduct of both States and NSAGs.60 The question that emerges is whether it can be affirmed that NSAGs are willing to abide by international obligations. Can their non-compliance be explained by reasons other than unwillingness? Can the CAAC framework create incentives to foster willingness? And can it adapt to the changing nature of contemporary conflicts and of the NSAGs involved in them? These issues are discussed in this sub-section. The CAAC framework is an approach primarily based on dialogue with those parties to armed conflicts that do not comply with their international obligations—it embraces the idea that NSAGs may be willing to abide by humanitarian rules. This sort of engagement strategies have been and continue to be used by various actors. The International Committee of the Red Cross (ICRC), international organizations, NGOs such as Geneva Call, and even States have encouraged and facilitated the development of mechanisms that allow NSAGs to express their views on the rules applicable during armed conflict.61 Indeed, NSAGs have used unilateral declarations, codes of conduct and special agreements to affirm their commitment to abide by IHL.62 As pointed out by Sivakumaran, these expressions ‘provide an indication as to the views of armed groups on humanitarian norms and they comprise a useful entry point for engaging with armed groups on humanitarian issues.’63 Indeed, expressions of this kind have addressed the situation of children affected by armed conflict in recent times. Unilateral declarations issued by NSAGs in Myanmar, the Central African Republic and Sudan, and a code of conduct of the Bangsamoro Islamic Armed Force in the Philippines, provided for the adoption of feasible measures to ensure children’s protection and welfare.64 Moreover, a special agreement between the government of the Philippines and the National Democratic Front contains several provisions on the rights of children, including that they shall not be allowed to participate in hostilities.65 Further, twenty-six NSAGs have undertaken concrete obligations by signing a Deed of Commitment for the

59

See Chayes and Handler Chayes 1995, p 10; Happold 2010, p 375. UN Secretary-General 2005, para 74. 61 See Sassòli 2010, p 30; ICRC 2008, p 19; Tougas and Quintin, Chap. 13; Heffes, Chap. 15. 62 See e.g. Sivakumaran 2011, pp 465–469; Bangerter 2012, pp 4–25; Sivakumaran 2012, pp 107–152; Heffes and Kotlik 2014; Saul 2016, pp 9–15. 63 Sivakumaran 2011, p 464. 64 See Sivakumaran 2012, pp 315–316. 65 Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law 1998, Part III, Articles 2(24), 10, Part IV, Article 10. 60

14

Compliance with Humanitarian Rules on the Protection …

399

Protection of Children from the Effects of Armed Conflict, under the auspices of Geneva Call.66 These experiences show how dialogue processes allow the involved actors to: (i) take into account the factors that influence NSAGs’ choices and the reasons they provide to justify them; (ii) boost existing incentives to comply with international obligations and create new ones; (iii) obtain concrete commitments to abide by those rules; (iv) understand the contours of the capacity of NSAGs to implement appropriate measures to comply and ensure that practical means are set in place to ensure that the rules are respected. It is no surprise, then, that the UN has also employed dialogue with NSAGs to advance humanitarian goals. Even before the establishment of the MRM, field staff of the UNICEF, the UN High Commissioner for Refugees (UNHCR) and the UN Office for the Coordination of Humanitarian Affairs had conducted ad hoc negotiations with the parties to conflicts, and the SRSG also developed a practice of eliciting and obtaining concrete commitments from the parties to conflict. These experiences have been considered important benchmarks for advocacy, monitoring and follow-up.67 Certainly, it would be difficult to find an armed conflict where violations of humanitarian rules do not occur. NSAGs may have aims or methodologies that are simply incompatible with them (e.g. they engage in terrorism, ethnic cleansing or genocide as a matter of policy), or seek a military advantage that is only obtained through violations, or make a rational choice not to comply.68 In these cases, NSAGs show no concern whatsoever about compliance with IHL or possible sanctions,69 thus exclusive reliance on dialogue may be insufficient. Bangerter has explained, however, that NSAGs often have multiple reasons to comply with international law. These include considerations as to their self-image, their concern for the image they project at the national and international level, their convictions (moral, cultural, political or religious), their desire to protect the population they are fighting for, the hope that the adversary may reciprocate, or other utilitarian considerations.70 If this is the case, non-compliance may not always be related to unwillingness on the part of the NSAG. Indeed, they may have insufficient knowledge and understanding of IHL, or perceive that its rules are disconnected from reality, or lack the appropriate structure and resources to abide by the law, for example, because they do not have legal advisers or a command structure to properly monitor the behavior of their fighters and to punish any transgressions.71

66

Geneva Call n.d. Child Protection; Geneva Call 2017, pp 19–20; Heffes, Chap. 15. UN Secretary-General 2003, paras 73–75. 68 See Bangerter 2011, pp 354, 368–380 (mentioning the recruitment of children as a conduct that may be rationally explained); Wood 2015, p 15; La Rosa and Wuerzner 2008, p 331; Saul 2016, pp 4–6. 69 See ICRC 2007, p 23; Saul 2016, p 6. 70 See Bangerter 2011, pp 358–368; Muñoz-Rojas and Frésard 2003. 71 See Bangerter 2011, pp 357, 369–370, 380–382; Geneva Call 2017, p 13. 67

400

M. D. Kotlik

They may also not accept rules that were exclusively agreed upon by States72 (particularly the State they are fighting against), or they may lack incentives to comply if they are already liable to be punished under domestic law for taking up arms against the State.73 These compliance difficulties may be understood as specific strategic problems linked to the nature of warfare in NIACs.74 Thus, as the nature of armed conflicts and the type of violence practiced by NSAGs evolves,75 the problems that affect compliance may augment, diminish and change. As framed by Chinkin and Kaldor, ‘new wars’ are predominantly conducted in the name of identity (ethnic, religious or tribal) goals, by loose and fluid networks of State and non-State actors that cross borders, who intend to acquire political control of territory, often finance their activities through criminal enterprises, and direct violence mainly against civilians.76 Thus, both for political and economic reasons, they ‘have more the logic of a mutual enterprise than the logic of a contest of wills, they are likely to lead to persistence and spread, to be long, sporadic, difficult to end and difficult to contain geographically.’77 In order to have any chance of success, attempts to engage in dialogue must bear in mind the evolving nature of armed conflicts, as well as the specific characteristics of the relevant NSAGs. As explained by the ICRC’s recent study on ‘The Roots of Restraint in War’, NSAGs may vary in terms of size, organizational structure, capabilities, socialization mechanisms and openness to external influence, and it is important to understand their inner workings in order to identify what leads them towards violence or restraint.78 Indeed, depending on how they recruit and indoctrinate new members, how they finance their activities, and how they build cohesion within the group, NSAGs may be organized as centralized hierarchies with top-down discipline, or have different degrees of decentralization, or even be fully embedded within communities. In turn, this influences each NSAG’s military capability, the type of control exercised by their leaders, and how members distinguish between acceptable and unacceptable behavior.79 Recognizing these structural differences helps to identify key-decision makers (i.e. senior leaders in centralized groups or local commanders in decentralized ones) and their levers of influence (i.e. established rules and values imparted to members in centralized groups, or shared values and traditions in decentralized and community-embedded

72 73 74 75 76 77 78 79

See Henckaerts 2003, pp 126–129; Moir 2002, pp 54–55; Bongard and Somer 2011, p 685. ICRC 2003, pp 20–21; Bangerter 2011, p 357. Bellal and Casey-Maslen 2011, p 177. See ICRC 2018, pp 13–15, 20–21. See Chinkin and Kaldor 2017, pp 7–18. Ibid., p 7. ICRC 2018, pp 19, 64. Ibid., p 22.

14

Compliance with Humanitarian Rules on the Protection …

401

ones). In the end, a detailed and contextual examination of each group’s particularities is unavoidable.80 Consequently, it is noteworthy that the Secretary-General has explained that ‘[a]dvocacy strategies require the identification of specific incentives based on the military structure, size, modus operandi and other characteristics of armed groups.’81 In this respect, decentralized groups—which presently constitute the majority of NSAGs worldwide—represent a particularly complex challenge in terms of engagement.82 To successfully engage with these groups (as well as with community-embedded ones), it may be necessary to pay greater attention to the local, regional and global actors that exert influence over them.83 By focusing on engagement at the local level and with a variety of actors concerned with child protection (as explained below in Sect. 14.3.1), the MRM may be able to adapt to contextual differences and tackle the strategic problems faced by different NSAGs. Of course, once dialogue has been established with a NSAG, it is possible to progressively identify the underlying reasons for its actions. Yet the establishment of dialogue itself already requires a minimum degree of interest on behalf of the NSAG. The CAAC framework aims at triggering such dialogue through a naming and shaming mechanism: listing by the Secretary-General. In fact, the UN Security Council has set an agenda that must be followed by any entity interested in being ‘seen as a respectable and reliable member of the international community.’84 As explained by the Secretary-General: At political and practical levels there are levers of influence that can have significant sway with all parties to conflict. In today’s world, parties to conflict cannot operate as islands unto themselves. The viability and success of their political and military projects depend on networks of cooperation and good will that link them to the outside world, to their immediate neighbourhood as well as to the wider international community.85

Thus, this mechanism creates an incentive to abide by the relevant humanitarian rules, based on the parties’ desire for acceptance at the national and international level, the influence of public exposure and the possibility of being subjected to diverse accountability mechanisms.86 In Klosterman’s view, the listing mechanism ‘enables the Security Council to work with the motivations of coercion and self-interest.’87 It is submitted here that the latter is fundamental, as it is related to

80

Ibid., pp 23–24. UN Secretary-General 2014, para 15. 82 ICRC 2018, p 46. 83 Ibid., pp 50, 57. See also UN Secretary-General 2018, para 17, highlighting the need for ‘closer strategic and operational partnerships with regional and subregional actors … to address the challenge of sustaining peace.’ 84 Happold 2010, p 371. 85 UN Secretary-General 2005, para 77. 86 Ibid. 87 Klosterman 2015, p 335. 81

402

M. D. Kotlik

the self-image and projected image that NSAGs use in order to attain legitimacy.88 It can be appreciated, then, that the establishment of this type of mechanism entails the recognition that wars ‘are fought in the name of political goals, and politics accordingly has to be part of the response.’89 Indeed, the CAAC framework operates by examining NSAGs’ features and stressing their needs and concerns. But its design may also have an added value. First, because all parties to armed conflicts are subject to listing, this may serve as a reassurance for NSAGs that do not trust institutions created exclusively by States. Since it is clear that it is not only NSAGs that are being targeted, NSAGs may be more prone to undertake humanitarian commitments if they realize that this might have the effect of making them seem as more respectful of international rules than their ‘enemy’.90 Second, because multiple stakeholders and other concerned actors— including NSAGs themselves—are involved in the production of information employed by the Secretary-General to list non-compliant parties to armed conflicts. This gives the MRM a degree of transparency that makes it more difficult for NSAGs to question the rationale that guides the Secretary-General’s decision to include or remove parties from the list. The main goal of dialogue within the framework is for parties to adopt action plans based on their voluntary agreement to take specific steps to end violations.91 This requires UN personnel on the ground to undertake an important persuasion effort, which is ‘the characteristic method by which international regimes seek to induce compliance.’92 Further incentives may emerge throughout the entire process, as may become evident in Sect. 14.3. In sum, while managerial strategies in the context of treaty regimes are based upon the voluntary agreement of States—inferred from their consent to be bound by the relevant treaty regime—this approach has some nuances when dealing with NSAGs in the context of the CAAC framework. Although the willingness of NSAGs to abide by humanitarian rules cannot be presumed in the same way as States, neither can it be assumed that they are always unwilling to do so. Through dialogue, the CAAC framework can identify willingness where it already exists, and it can actively seek to incentivize NSAGs’ interest in complying with the law. To that end, it is significant that the framework has the key features of a managerial approach.

See Jo 2015, p 5 (stating that the ‘central thesis of the book is that legitimacy-seeking rebel groups are more likely to comply with international law than legitimacy-indifferent groups’). See pp 150–153 for an explanation of how legitimacy considerations may have an impact upon the use of child soldiers. 89 Chinkin and Kaldor 2017, p 7. 90 Bellal and Casey-Maslen 2011, pp 193–194. 91 See Koller and Eckenfels-Garcia 2015, p 5. 92 Chayes and Handler Chayes 1995, p 25. 88

14

Compliance with Humanitarian Rules on the Protection …

14.3

403

The Main Elements of a Managerial Approach in the CAAC Framework

If the main source of non-compliance is not willful disobedience, Chayes and Handler Chayes explain that a more sophisticated strategy is needed to deal with other factors that lead to non-compliance—one that is not based on coercion.93 Within regulatory regimes, they identify the elements of such a strategy: ensuring transparency, dispute settlement, and capacity building.94 In this section it is submitted that these elements are reflected in the CAAC framework. Indeed, they all ‘merge into a broader process of “jawboning”—the effort to persuade the miscreant to change its way,’95 which has been introduced in Sect. 14.2.2.

14.3.1 Transparency: Bringing in Multiple Stakeholders Transparency refers to the generation and dissemination of information about the requirements of a legal regime and the parties’ performance under it. It entails the adoption of mechanisms to produce data on performance, usually through self-reporting, and to verify that information through external checks. Thus, it facilitates coordination among actors, provides them with reassurance about other participants’ compliance, and functions as a non-compliance deterrent.96 The first two levels of the MRM—information-gathering at the country level, and the review of information and preparation of reports at the headquarters level—have the features of a transparency mechanism. As to the generation of information, on the ground it is compiled and vetted by country task forces formed by UN personnel that is usually already deployed in the field—i.e. field staff of the UNHCR, the Office of the High Commissioner for Human Rights and the UN Development Programme—and by non-governmental organizations (NGOs) with experience in monitoring and reporting. Task forces acquire information through the reports of the relevant parties, and they engage with entities involved in child protection networks, including governments, international NGOs and local civil society. They are led by special representatives of the Secretary-General or resident coordinators, usually from UNICEF or the UN Department of Peacekeeping Operations, who are ultimately responsible for ensuring follow-up, mainstreaming, coordination and monitoring, as well as for engaging in dialogue with parties to armed conflict.97 93

See ibid., p 22. See ibid., pp 22–27. 95 Ibid., p 25. 96 Ibid., pp 22–24. 97 See UN Secretary-General 2005, paras 79–83; UN Security Council 2005, para 2(b); Happold 2010, p 366. 94

404

M. D. Kotlik

Task forces determine the division of labor, coordinate the gathering of information, provide feedback to local communities and civil society organizations, provide guidance in methodology and training in ethical and security matters to information gatherers, make determinations on practical and political constraints, and prepare country reports.98 They must establish a rigorous and systematic procedure for vetting the information that has been gathered—bearing in mind country-level particularities that may necessitate specific approaches—so as to ensure that the information transmitted is objective, accurate and precise.99 Information is also verified at the headquarters level. The SRSG is in charge of reviewing and consolidating the information produced at the country level into monitoring and compliance reports. This process involves a substantial number of UN actors that form a Task Force on Children and Armed Conflict, as well as external checks through consultations with governments, regional organizations, the ICRC and NGOs. Monitoring and compliance reports are comprehensive, encompassing the aforementioned six grave violations, and including lists of offending parties as well as concrete examples of protection and compliance measures undertaken by parties to an armed conflict.100 After data on performance is obtained and verified, the results are widely disseminated through the publication of reports by the SRSG and the Secretary-General. The growing number of armed conflicts, as well as the increase in and fragmentation of NSAGs, have made it more difficult to identify, monitor and report on their violations.101 For example, ‘[t]here is no systematic and detailed information on the numbers of children killed in armed conflict’ and ‘a lack of high-quality systematic evidence regarding the direct and indirect effects of armed conflict on children.’102 Yet, as highlighted by the NGO Save the Children, ‘despite the limitations, given the significant gaps in available child-specific data, the MRM and CAAC reports are some of the best indicators we have to assess the situation for children in conflict.’103 Indeed, by tracking patterns of violence over time, the mechanism may help predict violence and restraint, and guide preventive and remedial responses, thereby increasing the persuasiveness of arguments employed when conducting dialogues with NSAGs’ leadership.104 What is particularly interesting about the MRM as a transparency mechanism is how it enables involvement by a variety of concerned actors beyond the parties to armed conflict. The intervention of local communities and civil society 98

UN Secretary-General 2005, para 83. Ibid., para 86. 100 Ibid., paras 92–94. Since 2017, the lists of offending parties distinguish between those that put in place measures during the reporting period aimed at improving the protection of children, and those who did not. UN Secretary-General 2017, pp 39–41; UN Secretary-General 2018, pp 40–42. 101 See Save the Children 2018, p 35. 102 Baghat et al. 2018, p 2. 103 Save the Children 2018, p 18. 104 See ICRC 2018, p 20 (generally referring to tracking patterns of violence, although not specifically to the MRM). 99

14

Compliance with Humanitarian Rules on the Protection …

405

organizations, as well as that of international NGOs, may create further opportunities for coordination both among the parties to the conflict and between them and other relevant actors. For example, a meeting held in Geneva by the NGO Geneva Call allowed the Sudan People’s Liberation Movement-North to sign an action plan in the context of the CAAC framework.105 These opportunities may also occur before the stage of signing or implementing action plans, for example, when trying to gather accurate information. This was the case of the Karenni National Progressive Party—the political wing of the Karenni Army, a NSAG in Myanmar—which issued a series of declarations between 2007 and 2009 asking the Army’s name to be removed from the Secretary-General’s list.106 There, it emphasized the practical problems that prevented the establishment of efficient monitoring mechanisms. Interestingly, the statement was addressed not only to the UN but also to NGOs involved in the listing process, potentially enabling further dialogue with these actors. A deeper engagement with communities can also provide a better understanding of NSAGs’ internal norms and mechanisms of restraint.107 This is particularly important in the case of decentralized and community-embedded groups, which are subject to the stronger influence of external actors such as religious, social, political and economic authorities.108 Although the existence of more influential actors dilutes the impact of any given interaction on the NSAG, it also presents more entry points for dialogue on their behavior.109 Indeed, interaction with local communities may help produce data on performance that is more accurate and that reflects the multiple factors that may influence NSAGs’ behavior. In this sense, it should also aid in enhancing coordination among actors and the capacity for reports to act as deterrents of non-compliance.

14.3.2 Dispute Settlement: A Closer Look at Action Plans While dispute settlement mechanisms are usually employed to address ambiguity or vagueness in treaty provisions, managerial approaches emphasize that binding adjudication is only one among many options in this respect. In fact, most treaty regimes employ relatively informal mediative processes to arrive at authoritative interpretations.110 Chayes and Handler Chayes explain that ‘[o]n the whole, it has

105

See UN General Assembly 2017, para 33. Karenni National Progressive Party 2007; Karenni National Progressive Party 2008; Karenni National Progressive Party 2009. 107 ICRC 2018, p 66. 108 Ibid., pp 47, 49–50, 57–58, 60. See also Cismas and Heffes 2017 (focusing on religious actors). 109 ICRC 2018, p 65. 110 Chayes and Handler Chayes 1995, p 24. 106

406

M. D. Kotlik

not seemed to matter whether the dispute settlement procedure is legally required or the decision is legally binding, so long as the outcome is treated as authoritative.’111 Reports produced by the Secretary-General and the SRSG may spark actions that can be examined as dispute settlement mechanisms. Indeed, they are transmitted to multiple actors, or ‘destinations for action’, who should employ the means and levers of influence at their disposal to ensure the protection, rights and well-being of children affected by armed conflict.112 Thus, for example, governments have a central and immediate role in the protection and rehabilitation of children through different measures, such as the enactment of national legislation and the promotion of the CAAC agenda.113 For its part, the UN General Assembly may incorporate the information included in those reports when considering human rights in country-specific situations, issue calls for compliance, condemn grave violations and make specific recommendations on corrective measures.114 Likewise, the ICC has an important deterrent role, since it could use such reports to assist it in exercising its jurisdiction in accordance with its Statute, thus enabling the prospect of prosecutions for the commission of international crimes.115 Different UN actors which address human rights issues—such as the Human Rights Council and its Special Rapporteurs, the Office of the UN High Commissioner for Human Rights, and the Committee on the Rights of the Child—can also consider the protection of children during armed conflict within their mandates with the assistance of such reports.116 The topic can also be incorporated into the agendas and programs of regional and subregional organizations (such as the European Union, the African Union, the Organization of American States, the League of Arab States, and the Association of South-East Asian Nations), which can also contribute to a concerted monitoring and compliance regime.117 As for local and international NGOs and civil society organizations, they can continue contributing to monitoring and reporting and playing advocacy roles.118 As ‘the most important international “destination for action”,’119 the entire approach of the UN Security Council to the issue could also be analyzed as an exercise of its dispute settlement function. After all, the Security Council has considered the protection of children in armed conflict as an integral component of the maintenance of international peace and security.120 Since early on, the Secretary-General encouraged the Security Council to consider the information

111 112 113 114 115 116 117 118 119 120

Ibid. UN Secretary-General 2005, paras 98–99, 107; UN Security Council 2005, para 6. UN Secretary-General 2005, paras 108–109. Ibid., paras 117–118. Ibid., paras 121–123. Ibid., paras 124–132. See Oberleitner, Chap. 11. Ibid., paras 133–135. Ibid., paras 136–137. Ibid., para 110. See above n. 49.

14

Compliance with Humanitarian Rules on the Protection …

407

produced by the MRM and incorporate its concerns into resolutions on specific country situations and into fact-finding missions’ checklists, and also to include child protection in the mandates of all peacekeeping missions.121 This sub-section, however, focuses on a specific mechanism provided by the CAAC framework to identify and clarify the obligations of parties to armed conflicts: action plans. As aforementioned, the Secretary-General’s reports list parties to conflicts that commit violations, a strategy that actually predates the MRM. Indeed, the UN Security Council first requested the creation of such a list in 2001 with respect to the recruitment or use of children during armed conflict.122 Since the Security Council was criticized for only concentrating on one violation,123 it progressively added to its listing requests four other violations encompassed by the MRM124 (the denial of humanitarian access being the only remaining violation within the CAAC framework that the Security Council has not included as a trigger for listing). In order to develop and implement action plans to deal with those violations, task forces on the ground, under the authority of the Secretary-General, enter into dialogue with the listed parties.125 Dialogues are supported by the UN Security Council, which has repeatedly called on the listed parties to prepare such plans.126 In short, action plans are signed commitments between the UN and parties to armed conflicts that outline specific, time-bound measures in order to comply with international law and achieve delisting.127 As of August 2018, seventeen NSAGs and eleven governments in sixteen different countries have signed action plans.128 Although these have not been made public in a systematic way, the main commitments agreed upon are usually referred to in the Secretary-General’s country reports on children and armed conflict and in country-specific conclusions of the Working Group. The text of two action plans, however, is available: one agreed with the Moro Islamic Liberation Front (MILF) of the Philippines in 2009, and one with the Justice and Equality Movement (JEM) of Sudan in 2012. They provide a good insight as to the content of action plans and the type of measures that NSAGs undertake.

121

UN Secretary-General 2005, paras 111–114. UN Security Council 2001, para 16. In his first report, the Secretary-General only listed parties to conflicts which were already situations on the UN Security Council’s agenda. Nowadays, parties to conflicts on the UN Security Council’s agenda are listed in Annex I to the Secretary-General’s reports, while parties to other conflicts are listed in Annex II to the reports. 123 Happold 2010, p 367. 124 UN Security Council 2009, para 3; UN Security Council 2011, para 3; UN Security Council 2015, para 3. 125 See e.g. UN Secretary-General 2005, para 82. 126 See e.g. UN Security Council 2003, para 4; UN Security Council 2004, para 5; UN Security Council 2005, para 7. 127 Office of the Special Representative of the Secretary-General for Children and Armed Conflict n.d. Action Plans. 128 Ibid. 122

408

M. D. Kotlik

The MILF’s action plan contained the main commitment ‘[t]o prevent the recruitment of children, male and/or female, under the age of 18 and to ensure the release and reintegration of those who may be found in the BIAF [Bangsamoro Islamic Armed Forces].’129 In the case of the JEM, although it rejected the accusation that it recruits children as soldiers, it nonetheless committed to fully comply with the criteria established by the Secretary-General, and specifically to prevent the recruitment and use of child soldiers and to hand over children identified among its ranks to the UN or other competent actors designated by the UN for reintegration.130 By enabling NSAGs’ participation in the negotiation of action plans, the CAAC framework involves them in the reaffirmation and development of the law, which may constitute a first step for creating a sense of ownership over that law.131 This can boost NSAGs’ willingness to comply with the law, which is crucially dependent on an actor’s perception of having consented to it, or at least having participated in its formation.132 In fact, once action plans are signed, NSAGs’ leadership can transform them into specific mechanisms that its members are capable of implementing, for example, by issuing codes of conduct or internal orders to correct the violation and promote respect for the relevant rules.133 Indeed, the MILF’s action plan contemplated that it would: (i) issue a general order to inform commanders and officers of the BIAF that using and recruiting children was not acceptable and laying out disciplinary actions for those who did not comply, including the establishment of a complaints procedure for incidents of recruitment; (ii) establish child protection units within the ranks of the BIAF, with one unit at each major base or community and an overriding unit at the highest level; (iii) provide records of enlisted children and register those recruited by the BAIF, and ensure that they are released and start the process of reintegration. In order to fulfill these commitments, the MILF-BIAF also agreed to conduct monthly meetings with UNICEF, to coordinate with UNICEF to strengthen the birth registration system to facilitate age verification, and to adopt a series of capacity building measures (see next sub-section).134

129 MILF and UN in the Philippines 2009, para 2.1.a. The BIAF is the armed wing of the MILF, although both names are used interchangeably in some literature and news reports. 130 Justice and Equality Movement 2012, pp 2–4. 131 See Sassòli 2010, p 13. 132 See Ryngaert 2011, p 288. 133 See Muñoz-Rojas and Frésard 2003, pp 203–204; ICRC 2008, p 19; UN Secretary-General 2010, para 179 (explaining that action plans should include official command orders issued through the chain of command specifying a commitment to halt violations and to take disciplinary measures against perpetrators). 134 MILF and UN in the Philippines 2009, paras 2.1.c, 2.1.d, 2.1.f, 2.1.i, 3.1. The Supplemental General Order for General Order Nos. 1 & 2 issued by the MILF in support of the action plan can be found as an annex to the same document. The General Order clarifies the policy on the non-recruitment of children, establishes sanctions for non-compliance, and a procedure for handling children found within their ranks.

14

Compliance with Humanitarian Rules on the Protection …

409

As for the JEM, it explained that it had issued a command order to all its field commanders and members prohibiting recruitment and use of child soldiers (under 18-years-old) and that commanders were instructed to extensively disseminate that order and follow up on its implementation, including punishment in case of violations. It also committed to conduct reviews of troops every three months and on an ad hoc basis, to communicate lists of identified children to the UN and the African Union for their immediate release, and to provide training on child protection to its members every three to four months.135 Indeed, an empirical survey conducted by Bangerter concluded that regulations are more effective when they are widely disseminated to fighters and benefit from the strong backing of the group’s leadership.136 Individuals who identify with a NSAG give importance to orders that stem from those who they consider to be the legitimate authority.137 This seems to be particularly the case with centralized NSAGs, since their members are subjected to a system of socialization and control to align their beliefs and preferences with that of the leadership, reshaping their identities and building allegiance to the overall organization.138 Yet even highly decentralized, community-embedded groups may also have ‘codes of conduct that regulate behaviour during violent conflict.’139 Moreover, the leaders of these groups may be appointed democratically and often change, creating room for discussion and debate.140 Thus, as normative references, action plans are an important symbolic resource that may influence the attitudes of individuals, sometimes perhaps even more than the acknowledgment of moral requirements.141 An exclusive focus on the law, however, is not as effective at influencing behaviour as a combination of the law and the values underpinning it. Linking the law to local norms and values gives it greater traction. The role of law is vital in setting standards, but encouraging individuals to internalize the values it represents through socialization is a more durable way of promoting restraint.142

Indeed, ‘[t]he more that official group norms are supported or enforced at the peer level, the more likely they are to be internalized.’143 Thus, beyond integration of norms, it is necessary to creatively cooperate with NSAGs in order to achieve socialization.144 This undoubtedly constitutes a challenge that UN actors on the ground will continue to face when attempting to negotiate and implement new and 135 136 137 138 139 140 141 142 143 144

Justice and Equality Movement 2012, pp 4–6. Bangerter 2012, p 3. See Muñoz-Rojas and Frésard 2003, pp 193–195, 203–204. ICRC 2018, p 38. Ibid., p 55. Ibid., p 56. See Muñoz-Rojas and Frésard 2003, p 203. ICRC 2018, p 65. Ibid., p 25. Ibid.

410

M. D. Kotlik

existing action plans—it may require more personnel, further specialization, and an appropriate budget. Of course, action plans may be made purely for political reasons and not based on a sincere wish to improve the humanitarian situation. This risk is not exclusive to NSAGs, but also exists with respect to commitments made by States; in both cases, commitments will have to be assessed on their own terms.145 In any event, if NSAGs wish to maintain the legitimacy and political support they gain through discourse, there is a possibility that they will try to comply with the commitments included in the action plans. The MRM, however, also provides for the follow up of action plans. Once they are agreed upon, their implementation is supervised in order to verify that the parties comply with the specific commitments they have undertaken, which is the condition to achieve delisting.146 In this respect, the MILF’s action plan provided that, ‘[i]f security allows, UNICEF and relevant mutually agreed partners who are part of the monitoring and reporting mechanism will be provided regular and unimpeded access to relevant persons and areas of the BIAF in order to monitor and verify compliance.’147 Although the action plan established a period of up to 12 months to carry out the agreed activities, it also provided for the possibility of amendment or revision and for the amicable resolution of disputes between the MILF and the UN’s Country Team.148 Following compliance with the terms of the action plan, the MILF was finally delisted in 2017149 and has been considered as an example of how a NSAG seeking legitimacy may switch ‘its behavior over time, influenced by the interaction with external sponsors who cared about children’s rights.’150 The JEM also committed to granting unhindered access to the UN team to monitor and verify compliance, and to submit reports on implementation both to the UN and to the African Union every three months.151 The JEM’s action plan is currently still being implemented.152 Since the listing mechanism was set in place, nine parties in five countries—the majority of them NSAGs—have fully complied with their commitments and achieved delisting.153 This shows how, through continuous monitoring and 145

Sivakumaran 2012, p 112. See e.g. UN Secretary-General 2007, para 17; UN Secretary-General 2009, para 9; UN Secretary-General 2010, paras 178–180. 147 MILF and UN in the Philippines 2009, para 2.1.g. 148 Ibid., paras 5.1, 5.2. 149 Office of the Special Representative of the Secretary-General for Children and Armed Conflict n.d. Action Plans. 150 Jo 2015, p 167. 151 Justice and Equality Movement 2012, pp 5, 7. 152 Office of the Special Representative of the Secretary-General for Children and Armed Conflict n.d. Action Plans. 153 Ibid. In some cases, delisting is also related to the disappearance of the NSAG as such, for example, ‘in Colombia, following the transformation of FARC-EP into a political party, the group 146

14

Compliance with Humanitarian Rules on the Protection …

411

reporting of the implementation of action plans, the framework promotes compliance through political pressure rather than by legal sanction.154 Unsatisfactory performance is addressed through consultation and analysis, with the fundamental instrument being an iterative process of discourse among the parties to a regime.155 Further, delisting provides a clear incentive for compliance, grounded on the interdependency of the contemporary international system,156 namely, by preventing the actor’s isolation from the rest of the international community.157

14.3.3 Capacity Building: Generating the Tools to Transform Commitments into Concrete Action As previously explained, NSAGs may voice the difficulties they encounter in attempting to comply with humanitarian obligations. Among the different factors that may affect their conduct, those that concern a lack of capacity (whether technical, bureaucratic or financial) may be addressed through technical assistance or ‘capacity building.’158 Indeed, understanding the obstacles faced by NSAGs in complying with humanitarian obligations helps to ensure that practical means are set in place to see that rules are translated into specific mechanisms that lead to their effective respect.159 In the present context, a proper appreciation of such difficulties is particularly useful,160 since NSAGs can negotiate context-specific action plans, which may include measures such as amending their codes of conduct and issuing command orders.161 The adoption of action plans can also bring about the implementation of complementary measures, such as dissemination programs on the content of international rules, or the training of personnel.162 For example, the MILF’s action plan contained a series of commitments concerning capacity building in partnership with UNICEF and other agreed partners: training and advocacy with the BIAF on child protection and child rights; technical support for the establishment of child protection units within the BIAF, including specialized training to that end; assistance in the identification, verification, release

ended all child recruitment, released 135 children and has been delisted for ceasing recruitment and use.’ UN Secretary-General 2018, para 263. 154 See Happold 2010, p 362. 155 See Chayes and Handler Chayes 1995, p 26. 156 See ibid., pp 27–28. 157 UN Secretary-General 2005, para 77. 158 See Chayes and Handler Chayes 1995, p 25. 159 See Muñoz-Rojas and Frésard 2003, pp 192, 203–204. 160 See ICRC 2003, pp 20–21; Bangerter 2011, pp 357, 383–384. 161 See Geneva Call 2017, p 19. 162 See generally La Rosa and Wuerzner 2008, pp 333–334 (highlighting the importance of dissemination and training).

412

M. D. Kotlik

and reintegration of child soldiers; and implementing a community advocacy campaign on preventing the recruitment of children and on the impact and consequences of armed conflict on children.163 Moreover, the SRSG undertook to advocate for the necessary funding in support of the action plan, and remained available to offer any technical or other assistance the parties deemed necessary.164 As for the JEM, it committed to accept support from the UN and specialized actors in order to provide regular training on child protection.165 Capacity building within the CAAC framework does not only concern the parties to armed conflict. The UN Security Council has also supported and encouraged capacity building measures within local communities, civil society organizations and national agencies.166 This stresses another feature of managerial approaches: the interaction between States, civil society organizations, and international organizations.167 Since the framework’s inception, it was recognized that the development, support and strengthening of national institutions for the protection and rehabilitation of children, as well as of civil society networks for advocacy, protection, monitoring and rehabilitation, at the national and the subregional level, should be a priority, since it ensures local ownership and sustainability.168 Indeed, humanitarian organizations are increasingly exploring ways to support initiatives at the community level, particularly in protracted conflicts, and taking into account that communities can positively influence NSAGs and limit violence in several ways.169 Generating additional expertise in child protection, however, still remains a task that requires more funding and training for civil society organizations and NGOs working at local levels, in order to strengthen their work and support the inclusion of children’s participation and voices.170 Finally, the UN itself has undergone a process of capacity building: the adoption of a thematic approach has impacted on the UN Security Council’s design of mission mandates and personnel deployment, including measures to achieve a greater level of specialization of the UN’s staff.171 The question remains whether

163

MILF and UN in the Philippines 2009, paras 2.1.e, 2.1.f, 2.1.i, 2.1.j, 2.2. Ibid., para 2.3. 165 Justice and Equality Movement 2012, pp 5–6. 166 See e.g. UN Security Council 2005, para 17; UN Security Council 2014, para 14; UN Security Council 2015, para 12. See also UN Secretary-General 2009, para 174; UN Secretary-General 2010, para 191; UN Secretary-General 2016, paras 219, 221; UN Secretary-General 2017, para 238. 167 See Chayes and Handler Chayes 1995, pp 250–253. 168 UN Secretary-General 2005, para 81. 169 ICRC 2018, pp 42–43. 170 Save the Children 2018, p 38. 171 See e.g. UN Security Council 2005, paras 12, 18; UN Security Council 2009, para 11; UN Security Council 2011, para 14; UN Security Council 2014, paras 20, 24; UN Security Council 2015, para 15; UN Security Council 2018, paras 33, 36; UN Secretary-General 2006, paras 130– 133; UN Secretary-General 2007, paras 153–154, 165; UN Secretary-General 2009, paras 151– 164

14

Compliance with Humanitarian Rules on the Protection …

413

the measures adopted so far have been enough, and how the UN should deepen this process. In this regard, Chayes and Handler Chayes explain that ‘the regimes with the most impressive compliance strategies … are operated by substantial, well-staffed, and well-functioning international organizations.’172 Capacity building processes conducted by the parties to an armed conflict and by other concerned actors allow the normative power of the CAAC framework to be fully realized. It is not only about the de facto normative value of UN Security Council’s resolutions calling upon the parties to adopt action plans, nor about the specific commitments adopted by NSAGs through those action plans and their translation into orders within their ranks. The capacity building aspect of the framework also aims at generating the technical and financial capacity among the relevant actors so that the parties to the armed conflict can actually abide by humanitarian rules. And it underlines how international organizations, as well as local and international NGOs, also need to adapt their own structures and processes to better assist the parties to armed conflicts to pursue that goal.

14.4

Limitations Within and Beyond the Managerial Approach

Even though the examination of the CAAC framework as a predominantly managerial approach allows to appreciate its positive features as a strategy to ensure NSAGs’ compliance with humanitarian rules, it also leads to the identification of some drawbacks. Some of them, analyzed in Sect. 14.4.1, concern the institutional setting of the framework and how it affects the managerial approach itself. Others, addressed in Sect. 14.4.2, relate to the non-managerial aspect of the framework, that is, the coercive tool employed by the UN Security Council to address cases of deliberate non-compliance.

14.4.1 Limitations Within the Managerial Approach The three operative levels of the MRM (information gathering, review of information and preparation of reports, and ‘destinations for action’) are based on a complex scheme of cooperation. The amount, type and quality of information, how it is presented to the world, the possibilities for engaging in dialogue, and the feasibility of obtaining commitments and achieving compliance, depend—at least

153; UN Secretary-General 2010, para 194; UN Secretary-General 2011, para 219; UN Secretary-General 2012, para 241; UN Secretary-General 2013, para 211; UN Secretary-General 2014, paras 20, 213; UN Secretary-General 2015, para 274; UN Secretary-General 2016, para 224; UN Secretary-General 2017, para 242; UN Secretary-General 2018, para 258. 172 Chayes and Handler Chayes 1995, p 271.

414

M. D. Kotlik

to a certain extent—on the effective interaction between multiple actors and stakeholders within the CAAC framework.173 In this context, the coordination part that is played by the UN’s staff is of the utmost importance:174 they promote and enable participation, they act as managers and referees of the mechanism, and they are ultimately responsible for its results. This role of the UN’s staff highlights one aspect of the UN’s autonomy usually referred to as separate will, or political independence175—or at least a particular layer of autonomy in the performance of an executive function within the UN system.176 In other words, through the daily work of the UN’s staff the UN’s separate will is transformed into concrete and effective action. If the UN’s staff involved in the CAAC framework were not perceived as performing their functions independently, the parties to the armed conflict would probably be less willing to interact with them. Indeed, engaging with NSAGs and trying to influence their behavior requires that they trust the relevant organization’s purposes and practices, since ‘[c]ommanders are unlikely to meet with, let alone listen to, representatives of organizations they distrust.’177 Moreover, if the SRSG and the Secretary-General were not perceived as independent, then the listing mechanism would hardly raise any legitimacy concerns to begin with, nor would it lead to concrete efforts to comply with humanitarian rules. This is especially the case with regard to NSAGs, as they do not have any formal ties to the UN and might simply refuse to recognize it as a valid interlocutor. The UN staff’s ability to perform its role in an autonomous manner is, however, seriously offset by different instances of State control. Efforts to achieve results through the CAAC framework appear to be restrained in several ways. As in many institutional settings, budgetary constraints may have an impact on the organization’s ability to carry out its functions. This seems to be the case of the MRM. In fact, in 2012, the Secretary-General urged ‘the donor community to address, as a matter of priority, the funding gaps for the implementation of action plans, including the monitoring of compliance with action plans, and sustainable, long-term reintegration needs of children formerly associated with armed forces or armed groups, including economic reintegration.’178 The insufficiency of resources and funding for the UN, its partners and national governments to ensure long-term sustainability and viability has been a concern for many years now.179 Indeed, the 173

See e.g. UN Secretary-General 2006, para 119. See UN Security Council 2005, para 10; UN Security Council 2009, para 8; UN Security Council 2011, para 12; UN Secretary-General 2009, para 149. 175 See d’Aspremont 2011, p 63; Klabbers 2015, p 13. 176 See White 2011, pp 298–300, 302–303; Klabbers 2015, p 13. 177 ICRC 2018, p 67. 178 UN Secretary-General 2012, para 238. 179 See UN Secretary-General 2006, para 136; UN Secretary-General 2007, paras 150, 170; UN Security Council 2009, paras 13–14; UN Secretary-General 2010, para 185; UN Secretary-General 2011, para 223; UN Secretary-General 2012, para 238; UN Secretary-General 2013, para 205; UN Security Council 2014, para 15; UN Secretary-General 2014, para 207; UN Secretary-General 174

14

Compliance with Humanitarian Rules on the Protection …

415

latest resolution of the UN Security Council on the topic urged States, UN entities and financial institutions to support the development and strengthening of the capacities of national institutions and local civil society networks with timely, sustained and adequate resources and funding.180 Other restrictions may be enabled by the institutional design of the MRM. Since its inception, the UN Security Council has stressed that the MRM must operate with the participation of, and in cooperation with, national governments, and that dialogues with NSAGs must be conducted in the context of peace processes where they exist, or within the cooperation framework between the UN and the concerned government.181 In and of itself, this approach is not only logical but also consistent with State sovereignty. But there is always the risk that States abuse their position of power. In fact, the consent of governments has not always been immediately forthcoming.182 For example, the Secretary-General has reported that governments have prevented access in a timely manner to conflict-affected areas in Myanmar, Chad, Colombia, the Philippines, Sudan and Thailand.183 Moreover, during the initial years of the MRM, the governments of Colombia and the Philippines were hesitant to allow dialogue with certain NSAGs, even expressing concerns about what that would entail in terms of their legal and political status. This problem persists, to some extent, in Myanmar.184 Such concerns and reservations from States are frequent when dealing with NSAGs. In 2018, the Secretary-General reported that humanitarian access had been curtailed or denied in Myanmar, South Sudan, Syria and Yemen, preventing children from receiving essential aid.185 In fact, mere engagement with NSAGs by NGOs or international organizations has been prohibited in some States, or led to the organization’s expulsion from its territory.186 Under United States’ domestic law, for example, humanitarian organizations risk penalties if they are found to provide ‘material support’ to foreign terrorist organizations, even if it consists of IHL training.187 This affects organizations that deliver humanitarian assistance, as well as those that provide training in the implementation of capacity building

2016, paras 219, 221; UN Secretary-General 2017, paras 238, 242; UN Secretary-General 2018, para 259. 180 UN Security Council 2018, para 37. 181 UN Security Council 2005, paras 2(b), 2(d). 182 See Happold 2010, pp 365–366. 183 UN Secretary-General 2007, para 150; UN Secretary-General 2012, paras 113, 118, 163; UN Secretary-General 2014, para 204; UN Secretary-General 2015, paras 178, 186, 261. 184 See UN Secretary-General 2007, para 158; UN Secretary-General 2009, para 147; UN Secretary-General 2010, para 15; UN Secretary-General 2011, para 29; UN Secretary-General 2012, paras 77, 192; UN Secretary-General 2016, para 111; UN Secretary-General 2017, para 132; UN Secretary-General 2018, paras 134, 139, 142; Geneva Call 2017, p 19. 185 UN Secretary-General 2018, para 9. 186 See Roberts and Sivakumaran 2012, pp 132–137. 187 See 18 U.S. Code § 23339A; Supreme Court of the United States, Holder v. Humanitarian Law Project, 21 June 2010, 561 U.S. 1 (2010). See also Acquaviva 2010.

416

M. D. Kotlik

measures, as they may have to bear diverse legal consequences in the States in which they operate. Moreover, these dynamics may help to understand why the denial of humanitarian access, although one of the violations addressed by the CAAC framework, is not a trigger for listing by the Secretary-General. States also exert control over the process through the Working Group on CAAC. Its meetings take place in closed sessions, where specifically concerned States may be invited to participate.188 When discussions address situations listed by the Secretary-General but not on the agenda of the UN Security Council, they are conducted ‘in close consultation with countries concerned.’189 In this vein, Klosterman accurately explains that when most meetings are not official or public or announced, transparency is hindered.190 As mentioned, the Working Group has developed its own ‘toolkit’, which contains five types of direct action or recommendations that it can make to the UN Security Council within its mandate: assistance, demarches, enhanced monitoring, improvement of mandate and ‘other measures’ which comprise sanctions.191 Even when the Working Group’s recommendations do not prejudge the Security Council’s decisions, they still require the consensus of all its members,192 which has caused delays when dealing with some country reports.193 In these cases, information may become outdated and the parties’ willingness may be negatively affected.194 Moreover, the practice of the Working Group also indicates that some members are reluctant to take actions against parties to an armed conflict that are considered persistent violators.195

14.4.2 Limitations Beyond the Managerial Approach: The UN Security Council’s Coercive Tool To deal with deliberate non-compliance, the UN Security Council has expressed its intention to consider imposing targeted and graduated measures—such as asset freezing, arms bans, etc.—against those on the Secretary-General’s list who refuse to engage in dialogue, fail to develop action plans, or to implement their commitments.196 The decision to complement the managerial approach with this

188

UN Working Group of the Security Council on children and armed conflict 2006b, para V. Ibid., para VI. 190 Klosterman, p 346. 191 UN Security Council 2006. 192 UN Working Group of the Security Council on children and armed conflict 2006b, para VII. 193 See Happold 2010, pp 366–367, 375. 194 Klosterman, p 348. 195 Ibid., p 370. 196 See UN Security Council 2004, para 5(c); UN Security Council 2005, para 9; UN Security Council 2012, para 3(b); UN Security Council 2014, para 10; UN Security Council 2018, para 32. 189

14

Compliance with Humanitarian Rules on the Protection …

417

coercive tool reflects an important difference between seeking compliance of humanitarian rules in situations of armed conflict and the ‘routine enforcement of treaties.’197 This possibility is of the utmost importance, especially taking into account that one of the problems with most dialogue processes leading to commitments is the lack of accountability. In some cases, accountability mechanisms have been devised, but they continue to require a degree of willingness from the concerned NSAG, such as Geneva Call’s monitoring mechanism for Deeds of Commitment198 or institutional frameworks created by special agreements to investigate possible violations.199 Thus, the existence of a coercive tool is a key feature of a framework intended to obtain results even when the concerned parties are unwilling to comply with humanitarian rules and/or with specific commitments agreed upon through action plans. The UN Security Council, however, has scarcely employed this coercive tool. First, sanctions are only available for country-specific situations that are already on the Security Council’s agenda.200 Yet, even in those cases, the Working Group recommended the use of sanctions only nine times since its creation until 2013, primarily in relation to the situation in the Democratic Republic of Congo.201 During the 2013–2017 period, it recommended sanctions five more times.202 Moreover, in their analysis of the UN Security Council’s practice, Koller and Eckenfels-Garcia explain that until 2013 it authorized targeted measures specifically on the basis of grave violations against children only in the situations of Somalia, the Democratic Republic of Congo, and the Central African Republic. In Darfur and Côte d’Ivoire, targeted measures were authorized more broadly for violations of human rights and humanitarian law.203 Between 2013 and 2017, the Security Council adopted further targeted measures in the situations of the Democratic

197

Chayes and Handler Chayes 1995, p 2. See Geneva Call 2017, pp 20–21. 199 See e.g. Humanitarian Ceasefire Agreement on the Conflict in Darfur 2004 (creating a commission in charge of examining complaints related to possible violations of the cease fire); Agreement on a Ceasefire between the Government of the Democratic Socialist Republic of Sri Lanka and the Liberation Tigers of Tamil Eelam 2002 (creating the Sri Lanka Monitoring Mission); Cessation of Hostilities Framework Agreement between the Government of the Republic of Indonesia and the Free Aceh Movement 2002 (reactivating a Joint Security Committee capable of sanctioning violations of the agreement). 200 UN Security Council 2005, para 9. 201 See Koller and Eckenfels-Garcia 2015, pp 12–13. 202 See UN Working Group of the Security Council on children and armed conflict 2015, para 16; UN General Assembly 2016, para 65; UN Working Group of the Security Council on children and armed conflict 2017a, para 10; UN Working Group of the Security Council on children and armed conflict 2017b, para 10. 203 Koller and Eckenfels-Garcia 2015, pp 6–7. 198

418

M. D. Kotlik

Republic of Congo (nineteen individuals and three NSAGs), Côte d’Ivoire (one individual) and the Central African Republic (five individuals and one NSAG).204 As explained by Save the Children, the UN Security Council has sometimes been paralyzed by internal disagreements and perceived national self-interest, failing to take appropriate action in countries like Syria, Yemen, South Sudan and elsewhere.205 Indeed, in a 2012 Arria-formula meeting with Security Council members, UN actors involved in child protection and civil society organizations, it was suggested that the sanctions regime should be strengthened by expanding the criteria employed by sanctions committees and establishing a thematic or ad hoc sanctions committee for violations against children.206 But the Security Council has not followed this path. In practice, it seems that some members are reluctant to take action against persistent violators, and that the Security Council is divided on the issue.207 It is not only that targeted measures have been employed in few situations, but also that they have only led to compliance and delisting in Côte d’Ivoire.208 In fact, analyzing the effectiveness of these measures until 2015, Klosterman pointed out that ‘so far, no short- or long-term impact of the imposed sanctions has been observed’ and that ‘it seems that the threat of sanctions is more effective.’209 But even when the threat of sanctions may have great symbolic or rhetorical value,210 this effect fades away if action is not taken regularly when violations persist.211 Ultimately, the message conveyed—that violations will ultimately entail no consequences—may also undermine the possibility of achieving results through the managerial strategy.

14.5

Final Remarks

The reasonable degree of success of the MRM is based on the fact that NSAGs may be willing to comply with international rules on the protection of CAAC, and that engaging in dialogue to develop and implement action plans can stimulate willingness. After two decades, ‘there has been notable progress, including on tackling some of the deadliest weapons that kill and maim children—landmines and cluster 204

Ibid., 8–12; UN Working Group of the Security Council on children and armed conflict 2014, para 6(n); UN Working Group of the Security Council on children and armed conflict 2016, para 11(c). 205 See Save the Children 2018, p 36. 206 See UN Secretary-General 2013, para 12. 207 Happold 2010, p 370. 208 Office of the Special Representative of the Secretary-General for Children and Armed Conflict n.d. Action Plans. 209 Klosterman 2015, p 338. 210 See UN Secretary-General 2012, para 220; Field 2013, p 143; Happold 2010, p 363. 211 Klosterman 2015, p 338.

14

Compliance with Humanitarian Rules on the Protection …

419

bombs—and the release of more than 115,000 children associated with armed forces and groups.’212 As a strategy to ensure compliance by NSAGs, the CAAC framework emulates previous dialogue experiences. In this sense, it confirms that international law must integrate any kind of political organization acting in the realm of international relations,213 and it specifically recognizes the important role played by NSAGs in improving respect and compliance with humanitarian rules.214 Indeed, the benefits of engaging with NSAGs appear to be much higher than the risks that States often perceive in terms of granting them any sort of legitimacy.215 Just like with treaty regimes, ‘an iterative process of discourse’216 seems to be the fundamental instrument for maintaining compliance within the CAAC framework: the dominant atmosphere is one of actors engaged in a cooperative venture, in which performance that seems for some reason unsatisfactory represents a problem to be solved by mutual consultation and analysis, rather than an offense to be punished … [and] the circumstances advanced in mitigation or excuse of nonperformance are systematically addressed.217

In fact, the framework reflects the main features of a managerial approach, even when some of them are not manifested in exactly the same way as in treaty regimes exclusive to States. As explained, the legal regime relevant to the CAAC framework is to be sought in multiple sources instead of a single treaty. And NSAGs’ willingness to comply with the rules of said regime cannot be presumed in the same way as that of States, but needs to be sought by reference to various concerns that influence their actions and goals as parties to armed conflicts. Moreover, the CAAC framework has the added value of the UN Security Council’s endorsement and of involving multiple actors and stakeholders concerned with the same issue. In this sense, in the context of decision-making on humanitarian rules, non-State actors (sometimes even acting jointly) perform diverse functions,218 such as intelligence (gathering, processing and disseminating information through the MRM); promotion (defending general policies and submitting proposals through dialogue and negotiation); invocation (provisional characterization of events as compliance or violations through reports, listing and de-listing); and evaluation (of the framework’s performance with regard to community goals concerning the protection of children during armed conflict). Furthermore, the interactions between non-State actors entail concrete instances of prescription 212

Save the Children 2018, p 10. Kooijmans 1998, p 339. 214 See Bongard and Somer 2011, p 675. 215 See Roberts and Sivakumaran 2012, pp 134–137. 216 Chayes and Handler Chayes 1995, p 25. 217 Ibid., pp 25–26. 218 On the functions of decision-making processes, see Chen 2015, pp 17–18; McDougal 1956, p 57. 213

420

M. D. Kotlik

(through the adoption of action plans) aimed at ensuring norm application. Even when many of these functions involve local communities, NGOs, regional and international organizations, and of course NSAGs, the coordination role entrusted to UN’s staff on the ground is key in order to achieve results. The autonomy of the UN, however, may be curbed by State reluctance. In order to further the important work done through the MRM, the concerned UN actors ‘urgently need more resources, as well as improved and unfettered access for monitoring and reporting teams.’219 Without funding, many of the advantages of the CAAC framework may simply fade out. In addition, delays in the implementation of effective measures by the UN Security Council need to be overcome, particularly when it comes to the use of its coercive powers in order to deal with deliberate non-compliance. Of course, ensuring compliance with humanitarian rules hinges on multiple factors. No single approach is enough, in and of itself, to enforce behavioural standards upon NSAGs.220 This is evident when it comes to highly decentralized, community-embedded groups, which demands a better understanding of their norms and sources of influence.221 But even for centralized groups, further study of informal socialization processes222 will likely lead to improved results. While children continue to suffer the gravest consequences of armed conflict, the managerial approach adopted by the CAAC framework, even when imperfect and faced with many challenges, is a significant step towards enhancing their protection. Its possibilities for achieving greater success will continue to be subject to individual State interests and political goals, and will continue to depend on the capacity of the UN and other actors to interact and adapt to the changing circumstances and nature of contemporary armed conflicts.

References Abbot K, Snidal D (2000) Hard and Soft Law in International Governance. International Organization 54(3):421–456. Acquaviva G (2010) The Perils of Teaching and Practising International Law. Journal of International Criminal Justice 8(4):1001–1007. Agreement on a Ceasefire between the Government of the Democratic Socialist Republic of Sri Lanka and the Liberation Tigers of Tamil Eelam (2002) https://www.regjeringen.no/no/ dokumenter/agreement_on_a_ceasefire_between/id260701/. Accessed 20 August 2018. Baghat K et al (2018) Children Affected by Armed Conflict, 1990–2016. https://www.prio.org/ utility/DownloadFile.ashx?id=1551&type=publicationfile. Accessed 15 August 2018. Bangerter O (2011) Reasons Why Armed Groups Choose to Respect International Humanitarian Law or Not. International Review of the Red Cross 93(882):353–384.

219 220 221 222

See Save the Children 2018, p 36. Bangerter 2012, p 4; ICRC 2018, p 64. See ICRC 2018, p 54. Ibid., pp 64–65.

14

Compliance with Humanitarian Rules on the Protection …

421

Bangerter O (2012) Internal Control: Codes of Conduct within Insurgent Armed Groups. www. smallarmssurvey.org/fileadmin/docs/B-Occasional-papers/SAS-OP31-internal-control.pdf. Accessed 20 August 2018. Bellal A (2018) The War Report. Armed Conflicts in 2017. https://www.geneva-academy.ch/ joomlatools-files/docman-files/The%20War%20Report%20Armed%20Conflicts%20in% 202017.pdf. Accessed 20 August 2018. Bellal A, Casey-Maslen S (2011) Enhancing Compliance with International Law by Armed Non-State Actors. Goettingen Journal of International Law 3:175–197. Bolani M-L (2003) Security Council Sanctions on Non-State Entities and Individuals. Revue Hellénique de Droit International 56:401–439. Bongard P, Somer J (2011) Monitoring armed non-state actor compliance with humanitarian norms: a look at international mechanisms and the Geneva Call Deed of Commitment. International Review of the Red Cross 93(883):673–706. Cassese A (1981) The Status of Rebels under the 1977 Geneva Protocol on Non-International Armed Conflicts. The International and Comparative Law Quarterly 30(2):416–439. Cessation of Hostilities Framework Agreement between the Government of the Republic of Indonesia and the Free Aceh Movement (2002) https://www.usip.org/sites/default/files/file/ resources/collections/peace_agreements/aceh_12092002.pdf. Accessed 20 August 2018. Chayes A, Handler Chayes A (1995) The New Sovereignty. Compliance with International Regulatory Agreements. Harvard University Press, Cambridge. Chen L-C (2015) An Introduction to Contemporary International Law. A Policy-Oriented Perspective, 3rd edn. Oxford University Press, Oxford/New York. Chinkin C, Kaldor M (2017) International Law and New Wars. Cambridge University Press, Cambridge. Cismas I, Heffes E (2017) Can religious leaders play a role in enhancing compliance with IHL? http://blogs.icrc.org/law-and-policy/2017/12/20/can-religious-leaders-play-a-role-inenhancing-compliance-with-ihl-2/. Accessed 20 August 2018. Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law (1998). http://theirwords.org/media/transfer/doc/ph_ndfp_1998_17-ef3249df335f48cd378d1c 5082457be4.pdf. Accessed 20 August 2018. d’Aspremont J (2011) The multifaceted concept of the autonomy of international organizations and international legal discourse. In: Collins R, White N (eds) International Organizations and the Idea of Autonomy. Institutional Independence in the International Legal Order. Routledge, London/New York, pp 63–86. d’Aspremont J, de Hemptinne J (2012) Droit international humanitaire. Pedone, Paris. Field S (2013) UN Security Council Resolutions Concerning Children Affected by Armed Conflict: In Whose ‘Best Interest’? International Journal of Children’s Rights 21:127–161. Fortin K (2017) The Accountability of Armed Groups Under Human Rights Law. Oxford University Press, Oxford. Geneva Academy of International Humanitarian Law and Human Rights (2011) Rules of Engagement. Protection Civilians through Dialogue with Armed Non-State Actors. https:// www.geneva-academy.ch/joomlatools-files/docman-files/Research%20documents/Rules-ofEngagement-EN.pdf. Accessed 20 August 2018. Geneva Call (n.d.) Child Protection. https://genevacall.org/what-we-do/child-protection/. Accessed 17 August 2018. Geneva Call (2017) Armed non-State actors speak about child protection in armed conflict. Meeting Report 22–24 November 2016. https://genevacall.org/wp-content/uploads/dlm_ uploads/2017/09/CansaReport_web.pdf. Accessed 17 August 2018. Happold M (2010) Protecting Children in Armed Conflict: Harnessing the Security Council’s “Soft Power”. Israel Law Review 43:360–380. Heffes E, Kotlik M (2014) Special agreements as a means of enhancing compliance with IHL in non-international armed conflicts: An inquiry into the governing legal regime. International Review of the Red Cross 96(895/896):1195–1224.

422

M. D. Kotlik

Heffes E et al (2015) Addressing Armed Opposition Groups through Security Council Resolutions: A New Paradigm? Max Planck Yearbook of United Nations Law Online 18:32–67. Henckaerts J-M (2003) Binding Armed Opposition Groups through Humanitarian Treaty Law and Customary Law. Collegium 27:123–138. Humanitarian Ceasefire Agreement on the Conflict in Darfur (2004) https://peacemaker.un.org/ sites/peacemaker.un.org/files/SD_040408_Humanitarian%20Ceasefire%20Agreement%20on %20the%20Conflict%20in%20Darfur.pdf. Accessed 20 August 2018. International Committee of the Red Cross (n.d.) Customary IHL Database. https://ihl-databases. icrc.org/customary-ihl/eng/docs/v1_rul. Accessed 20 August 2018. International Committee of the Red Cross (2003) Improving Compliance with International Humanitarian Law, ICRC Expert Seminars (October 2003). https://www.icrc.org/eng/assets/ files/other/improving_compliance_with_international_report_eng_2003.pdf. Accessed 20 August 2018. International Committee of the Red Cross (2007) International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, 30th International Conference of the Red Cross and Red Crescent (26–30 November 2007). https://www.icrc.org/eng/assets/files/other/ihlchallenges-30th-international-conference-eng.pdf. Accessed 20 August 2018. International Committee of the Red Cross (2008) Increasing Respect for International Humanitarian Law in Non-International Armed Conflicts. https://www.icrc.org/sites/default/ files/topic/file_plus_list/0923-increasing_respect_for_international_humanitarian_law_in_noninternational_armed_conflicts.pdf. Accessed 20 August 2018. International Committee of the Red Cross (2016) Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 2nd ed. https://ihl-databases.icrc.org/ihl/full/GCI-commentary. Accessed 20 August 2018. International Committee of the Red Cross (2018) The Roots of Restraint in War. ICRC, Geneva. Jo H (2015) Compliant Rebels. Rebel Groups and International Law in World Politics. Cambridge University Press, Cambridge. Justice and Equality Movement (2012) Action Plan—Operational Mechanism to prevent and end recruitment and use of child soldiers. http://theirwords.org/media/transfer/doc/sd_jem_2012_ 55-b4f6cb533f33a9415cc738069a0efee6.pdf. Accessed 20 August 2018. Karenni National Progressive Party (2007) Statement No. 02/2007. In response to the UN’s report on the use of Child Soldiers by Non-State Actors in Burma. http://theirwords.org/media/ transfer/doc/mm_knpp_ka_2007_11-35e89b953b607764b5dc1e1543369177.pdf. Accessed 20 August 2018. Karenni National Progressive Party (2008) Call for the KA’s name removal. http://theirwords.org/ media/transfer/doc/mm_knpp_ka_2008_09-cb54d0964397b8521c4be94dc0fcc0d5.pdf. Accessed 20 August 2018. Karenni National Progressive Party (2009) Press Release No. 02/09, Appeal for the Karenni Army’s name to be removed from the list of non-state armed groups making use of child soldiers in armed conflict. http://theirwords.org/media/transfer/doc/1_mm_knpp_ka_2009_149ad6c2a28ce5f6d514aa4291d586c9c2.pdf. Accessed 20 August 2018. Kassoti E (2016) The Normative Status of Unilateral Ad Hoc Commitments by Non-State Armed Actors in Internal Armed Conflicts: International Legal Personality and Lawmaking Capacity Distinguished. Journal of Conflict and Security Law https://doi.org/10.1093/jcsl/krw005. Klabbers J (2015) An Introduction to International Organizations Law, 3rd edn. Cambridge University Press, Cambridge. Klosterman R (2015) The UN Security Council’s special compliance systems – the regime of children and armed conflict. In: Krieger H (ed) Inducing Compliance with International Humanitarian Law. Lessons from the African Great Lakes Region. Cambridge University Press, Cambridge, pp 313–350. Koller D, Eckenfels-Garcia M (2015) Using Targeted Sanctions to End Violations Against Children in Armed Conflict. Boston University International Law Journal 33:1–35.

14

Compliance with Humanitarian Rules on the Protection …

423

Kooijmans PJ (1998) The Security Council and Non-State Entities as party to a conflict. In: Wellens K (ed) International Law: Theory and Practice. Essays in Honour of Eric Suy. Martinus Nijhoff, The Hague, pp 333–346. La Rosa A-M, Wuerzner C (2008) Armed groups, sanctions and the implementation of international humanitarian law. International Review of the Red Cross 90(870):327–341. McDougal M (1956) Law as a Process of Decision: A Policy-Oriented Approach to Legal Study. Natural Law Forum 1:53–72. MILF and UN in the Philippines (2009) Action Plan Between the Moro Islamic Liberation Front (MILF) and the United Nations in the Philippines Regarding the Issue of Recruitment and Use of Child Soldiers in the Armed Conflict in Mindanao. http://theirwords.org/media/transfer/doc/ 1_ph_milf_biaf_2009_13-d74703efad5c37df5ab9842bc87e67a2.pdf. Accessed 20 August 2018. Miretzki P (2009) Delegitimizing or Evolving? The Legality of UN Security Council Resolutions Imposing Duties on Non-State Actors. https://papers.ssrn.com/sol3/papers.cfm?abstract_id= 1963689. Accessed 20 February 2018. Moir L (2002) The Law of Internal Armed Conflicts. Cambridge University Press, Cambridge. Muñoz-Rojas D, Frésard J-J (2003) The Roots of Behaviour in War: Understanding and Preventing IHL Violations. International Review of the Red Cross 86(853):189–206. Murray D (2016) Human Rights Obligations of Non-State Armed Groups. Hart Publishing, Oxford/Portland. Office of the Special Representative of the Secretary-General for Children and Armed Conflict (n.d.) Action Plans. https://childrenandarmedconflict.un.org/our-work/action-plans/. Accessed 20 August 2018. Office of the Special Representative of the Secretary-General for Children and Armed Conflict (2013) The Six Grave Violations Against Children During Armed Conflict: The Legal Foundation. https://childrenandarmedconflict.un.org/publications/WorkingPaper-1_SixGrave ViolationsLegalFoundation.pdf. Accessed 20 August 2018. Pejic J (2011) The Protective Scope of Common Article 3: More than Meets the Eye. International Review of the Red Cross 93(881):189–225. Pictet J (ed) (1952) Commentary on the Geneva Conventions of 12 August 1949, Vol. 1: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. ICRC, Geneva. Pictet J (ed) (1960) Commentary on the Geneva Conventions of 12 August 1949, Vol. II: Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. ICRC, Geneva. Roberts A, Sivakumaran S (2012) Lawmaking by Nonstate Actors: Engaging Armed Groups in the Creation of International Humanitarian Law. Yale Journal of International Law 37(1):107–152. Ryngaert C (2011) Non-State Actors in International Humanitarian Law. In: d’Aspremont J (ed) Participants in the International Legal System: Multiple Perspectives on Non-State Actors in International Law. Routledge, London and New York, pp 284–294. Sandoz Y et al (1987) Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949. Martinus Nijhoff, Geneva. Sassòli M (2003) Possible Legal Mechanisms to Improve Compliance by Armed Groups with International Humanitarian Law and International Human Rights Law. Paper submitted at the Armed Groups Conference (Vancouver, 13–15 November 2003). Sassòli M (2010) Taking Armed Groups Seriously: Ways to Improve their Compliance with International Humanitarian Law. Journal of International Humanitarian Legal Studies 1:5–51. Saul B (2016) Enhancing Civilian Protection by Engaging Non-State Armed Groups under International Humanitarian Law. Journal of Conflict and Security Law https://doi.org/10.1093/ jcsl/krw007. Save the Children (2018) The War on Children. Time to end grave violations against children in conflict. https://www.savethechildren.net/waronchildren/pdf/waronchildren.pdf. Link No Longer Available. Accessed 15 August 2018.

424

M. D. Kotlik

Sivakumaran S (2011) Lessons for the Law of Armed Conflict from Commitments of Armed Groups: Identification of Legitimate Targets and Prisoners of War. International Review of the Red Cross 93(882):463–482. Sivakumaran S (2012) The Law of Non- International Armed Conflict. Oxford University Press, Oxford. Somer J (2007) Jungle Justice: Passing Sentence on the Equality of Belligerents in Non-International Armed Conflict. International Review of the Red Cross 89(867):655–690. The Paris Principles: Principles and Guidelines on Children Associated with Armed Forces or Armed Groups (2007) https://www.unicef.org/emerg/files/ParisPrinciples310107English.pdf. Accessed 15 August 2018. The Safe Schools Declaration (2015) http://www.protectingeducation.org/sites/default/files/ documents/safe_schools_declaration-final.pdf. Accessed 15 August 2018. The University of Iowa Center for Human Rights (2016) Children in Armed Conflict. Human Rights Index #47. Transnational Law and Contemporary Problems 26:9–11. UN General Assembly (1993) Protection of children affected by armed conflicts. UN Doc. A/RES/ 48/157. UN General Assembly (1996a) Promotion and protection of the rights of children. Impact of armed conflict on children. UN Doc. A/51/306. UN General Assembly (1996b) The rights of the child. UN Doc. A/RES/51/77. UN General Assembly (2016) Report of the Special Representative of the Secretary-General for Children and Armed Conflict. UN Doc. A/71/205. UN General Assembly (2017) Report of the Special Representative of the Secretary-General for Children and Armed Conflict. UN Doc. A/72/276. UN Secretary-General (2002) Children and armed conflict. UN Doc. S/2002/1299. UN Secretary-General (2003) Children and armed conflict. UN Doc. A/58/546-S/2003/1053. UN Secretary-General (2005) Children and armed conflict. UN Doc. A/59/695-S/2005/72. UN Secretary-General (2006) Children and armed conflict. UN Doc. A/61/529-S/2006/826. UN Secretary-General (2007) Children and armed conflict. UN Doc. A/62/609-S/2007/757. UN Secretary-General (2009) Children and armed conflict. UN Doc. A/63/785-S/2009/158. UN Secretary-General (2010) Children and armed conflict. UN Doc. A/64/742-S/2010/181. UN Secretary-General (2011) Children and armed conflict. UN Doc. A/65/820-S/2011/250. UN Secretary-General (2012) Children and armed conflict. UN Doc. A/66/782-S/2012/261. UN Secretary-General (2013) Children and armed conflict. UN Doc. A/67/845-S/2013/245. UN Secretary-General (2014) Children and armed conflict. UN Doc. A/68/878-S/2014/339. UN Secretary-General (2015) Children and armed conflict. UN Doc. A/69/926-S/2015/509. UN Secretary-General (2016) Children and armed conflict. UN Doc. A/70/836-S/2016/360. UN Secretary-General (2017) Children and armed conflict. UN Doc. A/72/361-S/2017/821. UN Secretary-General (2018) Children and armed conflict. UN Doc. A/72/865-S/2018/465. UN Security Council (2001) Resolution 1379. UN Doc. S/RES/1379 (2001). UN Security Council (2003) Resolution 1460. UN Doc. S/RES/1460 (2003). UN Security Council (2004) Resolution 1539. UN Doc. S/RES/1539 (2004). UN Security Council (2005) Resolution 1612. UN Doc. S/RES/1612 (2005). UN Security Council (2006) Letter dated 8 September 2006 from the Permanent Representative of France to the United Nations addressed to the President of the Security Council. Addendum, Non-paper: Options for possible actions by the CAAC Working Group of the Security Council (“toolkit”). UN Doc. S/2006/724. UN Security Council (2009) Resolution 1882. UN Doc. S/RES/1882 (2009). UN Security Council (2011) Resolution 1998. UN Doc. S/RES/1998 (2011). UN Security Council (2012) Resolution 2068. UN Doc. S/RES/2068 (2012). UN Security Council (2014) Resolution 2143. UN Doc. S/RES/2143 (2014). UN Security Council (2015) Resolution 2225. UN Doc. S/RES/2225 (2015). UN Security Council (2018) Resolution 2427. UN Doc. S/RES/2427 (2018).

14

Compliance with Humanitarian Rules on the Protection …

425

UN Working Group of the Security Council on children and armed conflict (2006a) Report on the activities of the Working Group of the Security Council on Children and Armed Conflict since the adoption of resolution 1612 (2005) on 26 July 2005. UN Doc. S/2006/497. UN Working Group of the Security Council on children and armed conflict (2006b) Terms of reference of the Working Group of the Security Council on children and armed conflict. UN Doc. S/2006/275. UN Working Group of the Security Council on children and armed conflict (2014) Conclusions on children and armed conflict in the Democratic Republic of Congo. UN Doc. S/AC.51/2014/3. UN Working Group of the Security Council on children and armed conflict (2015) Conclusions on children and armed conflict in South Sudan. UN Doc. S/AC.51/2015/1. UN Working Group of the Security Council on children and armed conflict (2016) Conclusions on children and armed conflict in the Central African Republic. UN Doc. S/AC.51/2016/3. UN Working Group of the Security Council on children and armed conflict (2017a) Conclusions on children and armed conflict in Somalia. UN Doc. S/AC.51/2017/2. UN Working Group of the Security Council on children and armed conflict (2017b) Conclusions on children and armed conflict in Sudan. UN Doc. S/AC.51/2017/3. Vancouver Principles on Peacekeeping and the Prevention of the Recruitment and Use of Child Soldiers (2017) https://www.vancouverprinciples.com/wp-content/uploads/2017/11/17-204Vancouver-Principles-Doc-EN-v3.pdf. Accessed 15 August 2018. White N (2011) Layers of autonomy in the UN system. In: Collins R, White N (eds) International Organizations and the Idea of Autonomy. Institutional Independence in the International Legal Order. Routledge, London/New York, pp 298–315. Wood R (2015) Understanding strategic motives for violence against civilians during civil conflict. In: Krieger H (ed) Inducing Compliance with International Humanitarian Law. Lessons from the African Great Lakes Region. Cambridge University Press, Cambridge, pp 13–43. Zegveld L (2002) Accountability of Armed Opposition Groups in International Law. Cambridge University Press, Cambridge.

Marcos D. Kotlik is the Academic Coordinator of the Observatory of International Humanitarian Law at the University of Buenos Aires, School of Law (UBA), where he is also a Lecturer in International Law (on academic leave). He was a Judicial Fellow at the International Court of Justice for the 2018–2019 period. He previously worked as an attorney for the Center for Legal and Social Studies (CELS), a human rights organisation based in Buenos Aires, and as a consultant for the Institute of Public Policies on Human Rights of MERCOSUR and other regional organisations. He holds a Law Degree and a Masters in International Relations from UBA, as well as an LLM from the University of Michigan Law School. An early draft of this chapter was presented at the 2018 Salzburg Global Cutler Fellows Program in Washington D.C. The author thanks participants and Prof. Kristina Daugirdas for their insightful suggestions.

Chapter 15

Non-State Actors Engaging Non-State Actors: The Experience of Geneva Call in NIACs Ezequiel Heffes

Contents 15.1 Introduction...................................................................................................................... 428 15.2 Geneva Call’s Approach ................................................................................................. 432 15.2.1 Geneva Call and Armed Non-State Actors: How Does Initial Engagement Take Place?......................................................................................................... 434 15.2.2 Geneva Call’s Deeds of Commitment ............................................................... 436 15.2.3 Geneva Call’s Monitoring Activities ................................................................. 439 15.3 Some Selected Challenges and Achievements Related to the Protection of Children in Non-International Armed Conflicts ............................................................................ 441 15.3.1 The KNU/KNLA: How Organizational Issues May Affect Compliance.......... 442 15.3.2 The APCLS: How Capacity (or Lack Thereof) May Affect Compliance ........ 445 15.4 Concluding Remarks: The Importance of Geneva Call Engaging ANSAs ................... 447 References .................................................................................................................................. 448

Abstract Despite the existence of humanitarian rules binding upon armed non-state actors (ANSAs) in armed conflict, ensuring their respect still remains an important challenge. When dealing with ANSAs, this can be linked to several factors, such as their lack of knowledge of the law, the absence of an incentive to abide by the applicable rules, their fragmented structure, their lack of a centralized command authority and a lack of capacity to implement international humanitarian law (IHL). Certain humanitarian organizations have attempted to tackle these difficulties by recognizing that engaging with ANSAs is essential in order to enhance

E. Heffes (&) Geneva Call, Chêne-Bougeries, Geneva, Switzerland e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 E. Heffes et al. (eds.), International Humanitarian Law and Non-State Actors, https://doi.org/10.1007/978-94-6265-339-9_15

427

428

E. Heffes

the protection of civilians in conflict situations. This chapter aims at presenting the methodology employed by Geneva Call, an international non-governmental organization, when trying to persuade ANSAs to respect humanitarian norms. The following pages will provide an overview of this process, describing Geneva Call’s approach and discussing some of its achievements and challenges, in particular in the context of its child protection program.




Keywords Geneva Call Humanitarian Norms Engagement Compliance Ownership




15.1





Armed Non-State Actors


Introduction

Much has been written about the role of armed non-State actors (ANSAs) in the international sphere, in particular in the fields of international law and political sciences.1 In the last few years, the international community has become acutely aware of the importance of addressing the behaviour of these non-State entities, particularly in non-international armed conflicts (NIACs). Discussions on how to enhance their compliance with IHL are now frequent,2 as the effectiveness of this legal regime faces challenges from different quarters. As the president of the International Committee of the Red Cross (ICRC) remarked, referring to today’s NIACs, during the 2016 Istanbul World Humanitarian Summit: [w]hat will future historians remember from our present? That millions of people were deliberately or carelessly targeted; that their homes, hospitals and schools were destroyed and entire cities bombed to rubble; that millions of men, women and children were forced into displacement?3

1

See, among many others, Arjona et al. 2015; Rodenhäuser 2018; Murray 2016; Jo 2015; Fortin 2017; Sassòli 2010; Mampilly 2011; Hazen 2013; Staniland 2014; Weinstein 2007; and Zegveld 2002. See also Bellal, Chap. 2, and Henckaerts and Wiesener, Chap. 8 in this volume. Although international law and political science literature normally refers to ‘non-state armed groups’, ‘armed opposition groups’, ‘armed groups’, ‘rebels’ and ‘insurgents’, sometimes indistinctively, this chapter uses ‘armed non-State actors’ (ANSAs), as is used by Geneva Call. This category encompasses organized armed entities that are not under effective State control and lack legal capacity to become parties to relevant international treaties. ANSAs comprise of different types of actors, such as opposition and insurgent movements, dissident armed forces, paramilitary groups, de facto authorities and self-defense militias. 2 Krieger 2015; ICRC 2008; Bangerter 2011, 2015. 3 Maurer 2016.

15

Non-State Actors Engaging Non-State Actors …

429

In NIACs, ANSAs’ respect for IHL can be linked to several factors.4 These include, among others,5 their lack of knowledge of the law,6 or the absence of an incentive to abide by the applicable rules. ANSAs may also deliberately decide to breach their international obligations. In Krieger’s words, ‘[a]ctual decisions to obey a legal norm result from a complex mixture of diverse motivations. Power relations as well as historical, political, social and anthropological conditions determine these motivations so that compliance is context-dependent’.7 ANSAs’ fragmented structures, their lack of a centralized command authority and their capacity to implement the law can also present important challenges for IHL compliance.8 It is often expected that a relatively stable group with a vertical structure will behave differently than one with a decentralized structure. While the former would rely on established rules and values, the latter’s source of norm-influencing behaviour would need to be identified within local communities.9 Furthermore, ANSAs may have different approaches to specific IHL provisions throughout the conflict – a group going through a peace process, possibly looking for political legitimacy, will likely adopt a different attitude than a group whose main goal is to control the civilian population or to show its strength.10 Like States in international armed conflicts (IACs), ANSAs may weigh the costs versus the

4

For different views on this issue, see Bangerter 2011; and Jo 2017, pp 70–73. See Bangerter 2011, pp 358–383 for other reasons why ANSAs choose to respect the law or not. 6 Jo 2015, p 48; and Geneva Academy 2011, p 6. 7 Krieger 2015, pp 4–5. 8 Blakke et al. 2015 The problem with fragmented insurgencies, The Washington Post, 13 May 2015. https://www.washingtonpost.com/news/monkey-cage/wp/2015/05/13/the-problem-withfragmented-insurgencies/?noredirect=on&utm_term=.7c8f0edbf751. Accessed 3 December 2018 (affirming that a large body of conflict research has demonstrated that ANSAs’ fragmentation ‘makes conflict more violent, longer lasting and harder to resolve’). For the purposes of this chapter, fragmented ANSAs are those that ‘have weak coercive capacity for enforcing organizational decisions and little unity of purpose among leaders. They exist as loose collections of small factions and individuals but are unlikely to summon unity and institutionalized discipline for any substantial period of time’. Staniland 2014, p 8. 9 ICRC 2018, p 23. 10 This follows Jo’s theory of strategic legitimacy, which predicts that ANSAs are more likely to develop the urgency of pursuing legitimacy in the latter part of their life cycle, generally during peace negotiations. See Jo 2015, p 222. See also Fazal 2018, p 6. This can be observed, for example, when an ANSA with an active policy of recruiting and using of child soldiers throughout a conflict decides to demobilize them during peace negotiations. It should be noted, however, this is not true in every context. In Sri Lanka, for instance, it was claimed that the Liberation Tigers of Tamil Eelam (LTTE) were responsible for war crimes during the final months of the civil war, including the use of civilians as human shields, shooting civilians as they tried to flee LTTE control, deploying artillery near civilians and forcibly recruiting children as soldiers. See Ganguly M (2011) Sri Lanka takes the wrong road to peace, Human Rights Watch, 17 May 2011. https://www.hrw.org/news/2011/05/17/sri-lanka-takes-wrong-road-peace. Accessed 3 December 2018. Alternatively, peace or ceasefire negotiations have provided time for ANSAs to rebuild their military capacity, which would explain why weakened groups enter into negotiations but later return to war. Hazen 2013, p 9. 5

430

E. Heffes

benefits of complying with international law, and the results will vary depending on the goals of the group and the moment in time in which its behaviour takes place.11 ANSAs indeed play an important role in contemporary warfare,12 and some of them are responsible for widespread violations of humanitarian norms.13 In this context, the State-centric nature of international law presents challenges that might lead to negative outcomes in terms of their level of respect vis-à-vis ANSAs. Three in particular can be identified: (i) existing international treaties focus primarily on States; (ii) despite ANSAs being bound by IHL, they cannot negotiate or become parties to relevant international treaties and there is no agreement on whether they contribute to the formation of customary IHL in NIACs;14 and, (iii) as ANSAs’ views on humanitarian norms are generally dismissed by States without further analysis, they may have limited incentives to respect them. Generally, ANSAs may not feel bound by rules that they have not been involved in making and to which they are not formally allowed to give their consent.15 A recent study by Geneva Call on humanitarian action has, in fact, found that according to certain ANSAs, international law is seen ‘as biased and privileging States’.16 The particular features of NIACs, together with the abovementioned challenges related to the State-centric nature of international law, have shown the importance of implementing strategies specifically aimed at improving IHL compliance by ANSAs. Interestingly, some non-State actors have played an important role in this respect.17 The ICRC, an international organization with a sui generis nature,18 has

11

Fazal 2018, p 59. This is in light of the fact that ANSAs are parties to the majority of today’s armed conflicts. Bellal 2018, p 17; and ICRC 2018, pp 13–14. 13 Nonetheless, it should be noted that there are armed conflicts in which the vast majority of violations are attributed to State armed forces rather than ANSAs. See Bangerter 2011, p 356. 14 As stated elsewhere, from a practical perspective, this has an impact on ANSAs’ respect for IHL, since it seems unlikely that they will accept any set of rules ‘merely by the fact that it has been previously agreed upon by States, be it customary or treaty law’. Heffes and Kotlik 2014, p 1202. 15 In Jo’s words, ‘[f]rom a rebel perspective, an opportunity to participate in this drafting process may also serve as a powerful incentive and rationale to change behavior’. Jo 2015, p 256. See also Chinkin and Kaldor 2017, p 261; and Heffes and Kotlik 2014, pp 1204–1210. 16 Geneva Call 2016, p 25. 17 Although in general terms, this dynamic has been correctly identified by Charnovitz when affirming that ‘it has been crusading NGOs that led the way for states to see the international dimension of what was previously regarded as purely domestic matter’. Charnovitz 2006, p 348. In addition, the United Nations (UN) has also taken an active part in the field of child protection by creating a specific framework to address six violations committed against children in times of war. This mechanism allows specific UN agencies to engage both ANSAs and governments on specific international rules. See also Kotlik, Chap. 14 in this volume. 18 Cassese 2005, pp 131–132. 12

15

Non-State Actors Engaging Non-State Actors …

431

historically dealt with ANSAs in order to fulfill its mandate. Indeed, as far back as 1871, the ICRC’s founder, Henry Dunant, engaged with leaders of the Paris Commune to negotiate the release of hostages taken by rebel groups.19 In particular, over the last two decades, the ICRC was joined by other non-governmental organizations (NGOs) in practicing ‘humanitarian engagement’ with ANSAs.20 Human rights NGOs, which had traditionally focused their attention on governments, began to publicly report abuses committed by ANSAs and advocated for their compliance with international standards.21 When addressing their behaviors, NGOs have used a variety of approaches, ranging from dialogue, negotiation, and advocacy, to training and capacity building. These are not mutually exclusive; they vary and are combined in different ways according to the mandate of the organization(s) concerned, their working methods and the normative framework within which they operate. Created in 2000 by members of the International Campaign to Ban Landmines (ICBL), Geneva Call is a humanitarian NGO that follows this trend by acknowledging ANSAs as key actors to solve problems related to the implementation of IHL in armed conflict.22 As of 2018, Geneva Call has engaged with approximately 120 ANSAs on different humanitarian issues. This chapter aims at presenting Geneva Call’s methodology of engagement when attempting to enhance respect for humanitarian norms by ANSAs. The following pages will provide an overview of this process, describing its approach and discussing some of its achievements and challenges, in particular with respect to child protection in NIACs.

19

Bangerter 2008, p 75; and Quintin and Tougas, Chap. 13 in this volume. By ‘humanitarian engagement’, this chapter refers to a non-coercive process of interaction between NGOs and ANSAs for the purpose of ensuring that humanitarian norms and the provision of assistance to populations affected by armed conflicts are respected. 21 Heintze and Lülf 2015, p 110 (arguing that ‘[t]he increasing convergence of IHL and human rights law and the parallel application during armed conflict was one major incentive to reconsider this position’). A 2018 report by Human Rights Watch offers an example concerning the situation in the Democratic Republic of Congo, where the behaviour of ANSAs are included in the same paragraph as those of governmental forces. Sawyer I 2018 Overview of the Political Crisis in DR Congo and the Human Rights, Security, and Humanitarian Consequences, Human Rights Watch, 9 April 2018. https://www.hrw.org/news/2018/04/09/overview-political-crisis-dr-congo-and-humanrights-security-and-humanitarian. Accessed 3 December 2018. Similarly, in 2015 Amnesty International published a report claiming that Kurdish ANSAs in northern Syria were responsible for forced displacement and home demolitions ‘amounting to war crimes’. Amnesty International 2015 Syria: US Ally’s Razing of Villages Amounts to War Crimes, Amnesty International, 13 October 2015. https://www.amnesty.org/en/press-releases/2015/10/syria-us-allys-razing-ofvillages-amounts-to-war-crimes/. Accessed 3 December 2018. 22 Bongard 2010, p 160; and Sivakumaran 2012, p 538. 20

432

15.2

E. Heffes

Geneva Call’s Approach

When analyzing the current status of non-State actors within the international realm, NGOs tend to occupy a preferential place. Since the early 1990s, their visibility has grown tremendously,23 mainly because they have been involved in the creation, interpretation, and enforcement of international law.24 As Bennoune has pointed out, through their participation in the drafting of treaties and non-treaty standards, NGOs have contributed to the making of hard and soft law.25 They have also assumed functions that previously were considered as the exclusive responsibility of States, such as the provision of public services, in particular health care and education.26 In the IHL sphere, as NGOs often address the behaviour of the parties to armed conflicts, it can be argued that they assume roles that are of a great relevance for the international legal system given its limited enforcement capacity.27 In this context, Geneva Call, a Swiss-based humanitarian NGO, was created after members of the ICBL realized that the ban on anti-personnel mines would not be effective unless ANSAs would also be persuaded to refrain from the use of these weapons.28 Since the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction—also known as the Ottawa Convention—did not formally bind armed non-State actors, Geneva Call developed an innovative tool that would allow these entities to commit to this treaty’s core obligations: the Deed of Commitment for Adherence to a Total Ban on Anti-Personnel Mines and for Cooperation in Mine Action.29 This mechanism attempted to address the shortcomings of the treaty’s personal scope of application (i.e. that only States can be bound by its obligations) by offering ‘a parallel process for non-State armed actors…to actively enter a formal commitment to the ban of anti-personnel landmines’.30 By recognizing the importance of ANSAs’ consent to international obligations, this process aimed at developing a sense of ownership over the humanitarian rules they undertook to respect and to be

23

Noortmann 2015, p 205. Charnovitz 2006, p 352; and Bennoune 2012, pp 125, 129–132. 25 Bennoune 2012, p 129; Breton-Le Goff 2011, p 250; and Chen 2015, pp 83–84. See also Noortmann 2015, p 214. 26 Chen 2015, p 79. In a similar sense, see also Bruderlein 2000, p 2. 27 As Krieger has put it, ‘[e]nforcement and compliance have always been the Achilles heel of international humanitarian law’. Krieger 2015, p 1. 28 Bongard and Somer 2011, pp 684–685; and Sivakumaran 2012, p 538. The choice to address this issue is not arbitrary, considering that ANSAs often use anti-personnel mines, particularly improvised mines: Bongard 2010, p 160. As a recent report has affirmed, ANSAs rely on these weapons ‘with a frequency and scale in recent years that is resulting in a palpable increase in new mine casualties and threatening progress toward the long-held goal of a landmine-free world’. Landmine and Cluster Munition Monitor 2018. 29 Geneva Call n.d. Deed of Commitment under Geneva Call for Adherence to a Total Ban on Anti-Personnel Mines and for Cooperation in Mine Action. 30 Schneckener and Hofmann 2015, p 100. 24

15

Non-State Actors Engaging Non-State Actors …

433

held accountable for in their pledge.31 Geneva Call’s purpose is, therefore, to enhance the level of compliance by ANSAs with IHL through their consent. While initially focusing on the prohibition of anti-personnel mines, Geneva Call has since expanded its thematic work to other humanitarian concerns, namely, the protection of children, the prohibition of sexual violence and gender discrimination, the protection of cultural heritage, the prohibition of forced displacement and the protection of health care.32 The importance of this thematic approach has been highlighted by Schneckener and Hofmann, who have affirmed that focusing on single issues ‘makes mutual consent as well as the armed actor’s concessions less complicated compared to dialogue concerning multiple issues, such as in a peace process’.33 Focusing on specific humanitarian rules also makes Geneva Call’s monitoring activities easier. In addition to the Deed of Commitment mechanism (which is explained in more detail below), Geneva Call also provides training to ANSAs on the broader IHL framework as well as advice on how to implement its rules in practice.34 This is a key aspect of Geneva Call’s engagement process. Members of ANSAs, in general, are not trained to the same depth as members of the armed forces of a State, and they have little knowledge of the actual content and nuances of IHL beyond some general notions, such as the protection of civilians.35 Indeed, more often than not, once an individual becomes a member of a group, they are immediately sent into combat.36 Providing information and training on IHL is therefore essential to increase ANSAs’ respect for this legal framework.37

31 Bongard 2013; and Gillard 2016, p 7. The notion of ownership refers to the capacity and willingness of ANSAs ‘to set, and/or take responsibility for the respect of, norms intended to protect civilians as well as other humanitarian norms applicable in armed conflict’. Geneva Academy 2011, p 6, fn 11. As Ryngaert has suggested, ‘[i]f states create international legal duties for non-state actors without the latter’s consent, the legitimacy of the international legal system may potentially come under strain’. Ryngaert 2010, p 71. 32 Geneva Call n.d., p 17. 33 Schneckener and Hofmann 2015, p 103. 34 A set of modules supports such training. Developed with adult education specialists, these include presentations and practical exercises which aim to address ANSAs’ practical concerns about implementing international standards in the contexts in which they operate. See Geneva Call n.d. How we work. 35 Bangerter 2015, p 113; and ICRC 2008, p 12. 36 Sassòli 2007, p 64. A clear example of this situation is presented by the Immigration and Refugee Board of Canada concerning South Sudan, where it found cases of ‘forcible recruitment and military conscription’ by the government and ANSAs, claiming that certain individuals were picked up and taken to the battlefield, where ‘they were given uniforms and weapons and “almost immediately told to fight”’. Immigration and Refugee Board of Canada 2015. 37 As Bangerter correctly suggests, ‘only a relatively small circle of persons are well aware of legal concepts in any given society, and it is unlikely that leaders of armed groups will be recruited in this particular circle’. Bangerter 2015, p 113.

434

E. Heffes

15.2.1 Geneva Call and Armed Non-State Actors: How Does Initial Engagement Take Place? Generally, Geneva Call establishes contact with ANSAs in three ways.38 The first way is by direct contact, as was done with the Mouvement des Nigériens pour la Justice (MNJ), the Kurdistan Workers’ Party (PKK) and the Patriotic Union of Kurdistan (PUK). The second way is through third parties, such as local NGOs, civil society groups or even other ANSAs, as was the case with the Mouvement des Forces Démocratiques de Casamance (MFDC) from Senegal and the Parti pour la libération du peuple Hutu (PALIPEHUTU)-Forces nationales de libération (FNL) in Burundi. Members of the diaspora, community or religious leaders and other humanitarian actors have also assisted Geneva Call in this respect. Finally, some ANSAs have contacted Geneva Call directly, after having heard of the organization’s activities and approach. This was the case, for instance, with the Chin National Front (CNF) in Burma/Myanmar.39 Before engaging in dialogue with an ANSA, Geneva Call assesses the dynamics of the specific conflict and the armed group’s features, particularly its goals, leadership, internal structures, support bases and practices, and its overall capacity and policy regarding IHL. It then develops the most appropriate arguments to persuade the group to respect the law.40 Bangerter—former ICRC advisor for dialogue with armed groups—has explained that ‘[o]ne can discredit oneself very quickly by using arguments based on a wrong understanding of the armed group and its functioning, of the cultural and conflictual context, of the humanitarian issues or of the implications of the law for military reality’.41 Without this analysis, Geneva Call would not be able to influence ANSAs towards more protective outcomes. Generally, in order to persuade a group to do something, or refrain from doing something, NGOs (or any individual) should aim to appear knowledgeable about the relevant situation.42 Geneva Call considers two criteria before contemplating any dialogue. First, the existence of an organized armed force that the ANSAs actually uses, or at least that it is capable of using, in order to pursue its goals. This implies the existence of an organizational coherence and hierarchy expressed, for example, in a command structure, controlled access to weapons, the ability to recruit fighters/members, possibility to provide them with military training, and to carry out military operations. The importance of this criterion can be clearly identified, as ANSAs need to have a level of organization that allows their leaders to actually translate the 38

Schneckener and Hofmann 2015, p 101. Ibid. 40 Ibid. They comprise, for instance, the improvement of their reputation, the better treatment of detainees on the principle of reciprocity, military interests – including discipline and a functioning command structure, and the danger of prosecution. Hofmann and Schneckener 2011, p 618. 41 Bangerter 2015, p 117. 42 Ibid. 39

15

Non-State Actors Engaging Non-State Actors …

435

commitments made with Geneva Call into clear directives and rules that their members can follow, prevent possible breaches, and eventually punish violators through the adoption of disciplinary measures.43 Understanding the group’s structure also helps to enable long-term humanitarian dialogue,44 as a group going through a fragmentation period or possessing a weak internal organizational structure and discipline may be difficult to engage.45 The existence of a clear chain of command certainly enhances the capacity of an ANSA to respect and implement the obligations it undertakes.46 The second element considered by Geneva Call before initiating a humanitarian dialogue concerns the non-State character of the group. In order to engage with them, ANSAs should not be formally integrated into a State’s institutions, such as the regular army, presidential guards, police, security or special forces. In some conflicts, the lines between State and non-State forces are blurred, and it may be difficult to differentiate between a State-controlled paramilitary force and an autonomous pro-governmental group. However, when evidence of control exists, and the group clearly acts under the direction of a State or a group of States, Geneva Call will not engage it.47 Two additional issues should be noted. First, despite in the past Geneva Call mostly dealt with ANSAs that had a political agenda and were not mainly driven by profit-related objectives, nowadays it is difficult to single out their motivations. Since IHL applies regardless of the motivations of the parties to the conflict, any armed non-State actor that is engaged in an armed conflict can be potentially engaged by Geneva Call. It should be noted, however, that in practice the focus of

43 As Sinno explains, control and discipline mechanisms that motivate ANSAs’ members to behave in ways consistent with organizational goals are essential for organizational welfare. Sinno 2008, p 70. 44 Improving respect for international law by ANSAs can indeed be a lengthy process, and although there can be rapid progress in certain areas and with regard to certain norms, real change can only happen through mid-term dialogue. Based on Geneva Call’s experiences, especially in long drawn-out conflicts, engagement takes a minimum of three to five years before changes in behaviour and increased respect for the basic rules of war can take place. See also Bangerter 2015, pp 122–123. 45 Bongard 2010, pp 167–168. 46 Ibid., p 168; and Decrey Warner 2010, p 62. 47 Geneva Call follows the notion of ‘overall control’ as described by the International Criminal Tribunal for the former Yugoslavia: ‘[i]n order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group, not only by equipping and financing the group, but also by coordinating or helping in the general planning of its military activity. Only then can the State be held internationally accountably for any misconduct of the group … The control required by international law may be deemed to exist when a State (or, in the context of an armed conflict, the Party to the conflict) has a role in organizing, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group. Acts performed by the group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts’. ICTY Appeals Chamber, Prosecutor vs. Duško Tadić, Judgment, 15 July 1999, IT-94-1-AR72, paras 131 and 137.

436

E. Heffes

Geneva Call continues to be those ANSAs ‘politically motivated’. In any case, in principle, there are no ANSAs considered to be out of reach by Geneva Call since it aims to have a humanitarian dialogue with all those groups that fit within the abovementioned criteria, giving priority to those that have an impact on the civilian population. Second, the level of intensity of the armed conflict and ANSAs’ territorial control are not essential factors in Geneva Call’s decision whether to engage with them or not. Importantly, once initial contact is established through any of the abovementioned ways, Geneva Call attempts to have an open humanitarian dialogue with the relevant ANSA to understand the challenges it may face when dealing with humanitarian norms. This is key in order to plan future and tailored steps on how to improve its level of respect for IHL. For instance, a different approach would be implemented for a group deliberately using and recruiting children than one attempting to comply with the law, but simply lacking capacity and structure, such as a proper age-assessment mechanism. In addition, ANSAs may not need to be engaged on every humanitarian topic. An ANSA that does not use anti-personnel mines would not see the added value of receiving a training on their prohibition. This will certainly be determined according to the assessment done by Geneva Call.

15.2.2 Geneva Call’s Deeds of Commitment In addition to the abovementioned Deed of Commitment banning anti-personnel mines, three additional documents have been developed by Geneva Call: the Deed of Commitment for the Protection of Children from the Effects of Armed Conflict in 2010,48 the Deed of Commitment for the Prohibition of Sexual Violence in Situations of Armed Conflict and towards the Elimination of Gender Discrimination in 2012,49 and the Deed of Commitment for the Protection of Health Care in Armed Conflict in 2018.50 ANSAs are given the opportunity to sign them under certain conditions, such as that they have compliance issues on the thematic area covered by the respective Deed. ANSAs should also have a clear leadership structure that represents their members and can sign the document on behalf of the whole group. In addition, the groups should have the capacity to implement the core provisions. Finally, Geneva Call and its partners’ organizations should have the ability to monitor their compliance in the territories where the ANSAs operate. This is one of the most important elements to consider, as it is related to the capacity of Geneva Call to actually assess the respect of the commitment by the groups. Only if

48 Geneva Call n.d. Deed of Commitment under Geneva Call for the Protection of Children from the Effects of Armed Conflict. 49 Geneva Call n.d. Deed of Commitment under Geneva Call for the Prohibition of Sexual Violence in Situations of Armed Conflict and Towards the Elimination of Gender Discrimination. 50 Geneva Call n.d. Deed of Commitment for the Protection of Health Care in Armed Conflict.

15

Non-State Actors Engaging Non-State Actors …

437

these are present, will the Deeds be proposed as a tool of engagement to the ANSA. These are signed by the ANSA’s leadership and countersigned by Geneva Call and the Government of the Republic and Canton of Geneva, which serves as a custodian of the document.51 The ceremony usually takes place in the Alabama Room in Geneva’s City Hall, where the first Geneva Convention was adopted in 1864.52 Generally, ANSAs may be willing to sign one or more thematic Deeds for several reasons, such as gaining some sort of political recognition, reaffirming themselves as serious entities both before the international community and local constituencies, to demonstrate their ability to respect and follow humanitarian norms and to acquire an international reputation.53 Furthermore, the signing of a Deed may be particularly relevant when the State fighting against the group has not ratified the international convention dealing with that specific humanitarian topic. Decisions by ANSAs to sign certain Deeds were, in fact, instrumental to the accession of States to international treaties due to internal social pressure within the State in question.54 For example, Sudan ratified the Ottawa Convention in 2003, after the Sudan People’s Liberation Movement/Army (SPLA/M) signed the corresponding Deed of Commitment in 2001. High-level officials involved in mine action in that country indicated that the government would have not ratified the Ottawa Convention if not for the SPLA/M’s signing of the Deed.55 Interestingly, when South Sudan became a new State in 2011 and the SPLA/M became its government, the first humanitarian treaty it acceded to was the Ottawa Convention.56 Further, one important added value that Geneva Call has when compared with other humanitarian organizations, such as the ICRC, is that its engagement with ANSAs is public.57 Therefore, stakeholders can be informed about which groups are actively engaged with Geneva Call and on which thematic

51

Geneva Call n.d. How we work. Ibid. It shall be noted that the ceremony sometimes takes place in other locations. This was the case, for instance, in 2014 when the People’s Protection Units/Women’s Protection Units (YPG/ YPJ) and the Democratic Self-Administration in Rojava signed the Deeds in north-east Syria. Geneva Call 2014 Syrian Kurdish armed non-State actor commits to ban anti-personnel mines, sexual violence and child recruitment, Geneva Call, 16 June 2014. https://genevacall.org/syriankurdish-armed-non-state-actor-commits-ban-anti-personnel-mines-sexual-violence-child-recruitment/. Accessed 3 December 2018; and Geneva Call 2014 Syria: Kurdish armed forces demobilize 149 child soldiers, Geneva Call, 7 July 2014. https://genevacall.org/de/syria-kurdish-armed-forcesdemobilize-149-child-soldiers/. Accessed 3 December 2018. 53 Schneckener and Hofmann 2015, p 102. 54 Ibid. 55 According to Martin Barber, at the time Director of the UN Mine Action Service, ‘Sudan would not have felt able to ratify the Treaty of the SPLM/A had not already made a formal commitment to observe its provisions in the territory under its control’. Geneva Call 2007, pp 8–9, fn 18. 56 Sivakumaran 2015, pp 131–132. See also Schneckener and Hofmann 2015, p 102. 57 For an analysis on how the ICRC engages parties to armed conflict, see Quintin and Tougas, Chap. 13 in this volume. 52

438

E. Heffes

area(s) and the practical progress of their commitments,58 thus potentially holding them accountable for possible violations. The four aforementioned Deeds of Commitment mirror international standards. They include both negative and positive obligations. For instance, ANSAs that are signatories to the Deed of Commitment for the Protection of Children commit not only to a total ban on the use of children in hostilities, but also to ensure that they are not recruited into their armed forces (whether voluntarily or non-voluntarily) and to never compel children to associate with, or remain associated with, its armed forces.59 For the purposes of the Deed, children are defined ‘as persons under the age of 18, and where there is a doubt as to whether a person has reached the age of 18, (s)/he will be treated as a child’.60 ANSAs also commit to ‘further endeavor to provide children in areas where [they] exercise authority with the aid and care they require’, including access to food, health care, and education.61 Similarly, the Deed of Commitment for the Protection of Health Care includes obligations not to attack health care personnel, facilities and medical transports,62 and to give due warning in case they are ‘used outside their humanitarian functions to commit harmful acts, allowing them necessary time to remedy the situation or to safely evacuate’.63 ANSAs also commit to ‘[e]nsure, maintain and provide access for affected populations to essential health care facilities, goods and services, without adverse distinction’ in areas where they exercise authority.64 Of particular importance for Geneva Call’s engagement is the potential peer-pressure that can result from signatory groups engaged in various armed conflicts.65 ANSAs that have signed one or more Deeds can have a significant effect on other groups if they explain their reasons for adhering to them and share their experiences in doing so.66 This possibility is actually envisaged in the Deeds, which affirm that signatory ANSAs ‘see the desirability of attracting the adherence of other [ANSAs] to [the] Deed of Commitment and will do [their] part to promote it’. Some groups have indeed advocated to other ANSAs about the importance, for instance, of the prohibition on anti-personnel mines. This was the case, for instance, with the Arakan Rohingya National Organization (ARNO) and the CNF in Burma/ Myanmar. While it was reported that the former had made efforts ‘to encourage other rebel groups to sign the Deed of Commitment’, the CNF stated that it had

58

Geneva Call n.d. Where we work. Geneva Call n.d. Deed of Commitment for the Protection of Children from the Effects of Armed Conflict, Articles 1, 2 and 3. 60 Ibid., preamble. 61 Ibid., Article 7. 62 Geneva Call n.d. Deed of Commitment for the Protection of Health Care in Armed Conflict, Articles 3, 4 and 5. 63 Ibid., Article 6. 64 Ibid., Article 8. 65 Sivakumaran 2012, p 544. 66 Geneva Call 2004, p 23. 59

15

Non-State Actors Engaging Non-State Actors …

439

undertaken ‘some advocacy among other [ANSAs] active in its region in addition to facilitating contact between Geneva Call and the leadership of other groups’.67 The National Socialist Council of Nagalim (Isak-Muivah) (NSCN-IM) from India also promoted the Deed to other groups operating in the Northeast area of that country.68 The Chairman of the United Somali Congress/Somali National Alliance/Somalia Reconciliation and Restoration Council (USC/SNA/SRRC) in Somalia, Hussein Mohammed Farah Aideed, also urged other groups to either sign it, or to comply with the terms contained therein.69 The SPLM/A has also shared its experiences with Colombian, Angolan and other Sudanese ANSAs.70 In order to foster these experiences, Geneva Call often invites different groups to meet, discuss legal issues, address implementation challenges and identify practical solutions. In November 2016, for example, 21 armed movements from 11 countries, as well as specialized humanitarian agencies, gathered in Geneva for a meeting on how to better protect children and improve their education during armed conflict.71 Finally, according to the four Deeds of Commitment, ANSAs agree to take necessary measures in order to enforce their commitments (through internal orders, training, and sanctions) as well as to cooperate with Geneva Call to verify their compliance with them. Although there are no formal deadlines or benchmarks included in the Deeds by which these activities should take place, this is generally discussed and addressed through action plans between Geneva Call and the relevant ANSA.

15.2.3 Geneva Call’s Monitoring Activities As abovementioned, all the Deeds of Commitment include a standard monitoring provision. Indeed, the text of the Deeds of Commitment provides that the groups commit to: ALLOW AND COOPERATE in the monitoring and verification of our present commitment by Geneva Call and other independent international and national organizations and associated for this purpose with Geneva Call. Such monitoring and verification include visits and inspections in all areas where we operate, and the provision of the necessary information and reports, as may be required for such purposes in the spirit of transparency and accountability.72

67

Geneva Call 2006, p 79. Ibid. 69 Ibid., p 80. 70 Sivakumaran 2012, p 544. 71 Geneva Call 2017. 72 Geneva Call n.d. Deed of Commitment for the Protection of Children from the Effects of Armed Conflict, Article 9; Geneva Call n.d. Deed of Commitment for the Protection of Health Care in Armed Conflict, Article 10; Geneva Call n.d. Deed of Commitment for the Prohibition of Sexual Violence in Situations of Armed Conflict and Towards the Elimination of Gender 68

440

E. Heffes

Traditionally, monitoring takes place at three levels.73 First, by the signatory ANSAs themselves. They are required to submit reports to Geneva Call on the measures they have adopted to implement their obligations arising from the Deeds, and the potential challenges they face when attempting to enforce them. Each group is asked to appoint a focal person or group of individuals for this purpose. Although the Deeds do not stipulate any formal way of transmitting such information, this has been done in practice through written correspondence, verbal communications, and meetings in the field or in Geneva.74 Second, Geneva Call monitors compliance through an analysis of third-party information (i.e. from States, the media, UN agencies, local NGOs, local communities, local leaders, etc.). Finally, monitoring is done on the basis of Geneva Call’s own field missions, which could consist of either routine follow-up visits or verification missions undertaken to address credible allegations of serious violations which cannot be resolved through other monitoring mechanisms, as was done with the Moro Islamic Liberation Front in the Philippines.75 This monitoring level does not require further consent from the signatory ANSA, since such consent was already given when they signed the respective Deed. The objective of these missions is to determine whether the facts under scrutiny fall within the scope of the Deeds and whether the alleged violations are attributable to the respective group. In the last few years, this third level of monitoring was reinforced by Geneva Call’s more permanent presence in some of the countries where it works, such as in Iraq, Mali and the Democratic Republic of the Congo (DRC). In this context, a lesson that emerges from Geneva Call’s experience is that, contrary to a commonly held view, ANSAs are willing to accept external oversight and to cooperate in the scrutiny of their compliance. Nearly all signatory groups have abided by their monitoring obligations, provided information and reports to Geneva Call on the implementation of their obligations, and allowed follow-up missions in the field. No signatory ANSA has ever refused to receive a Geneva Call delegation in areas under its control, even after allegations of non-compliance have arisen. The Deeds also establish that Geneva Call may publicize instances of compliance or non-compliance by signatory ANSAs. Recent reports include both situations. In May 2018, for instance, Geneva Call publicly announced the destruction of 2,500 stockpiled anti-personnel mines in Western Sahara as a result of the commitment the Polisario Front undertook by signing the Deed of Commitment banning

Discrimination, Article 8; and Geneva Call n.d. Deed of Commitment for Adherence to a Total Ban on Anti-Personnel Mines and for Cooperation in Mine Action, Article 3. 73 For further information about this, see Bongard and Somer 2011, pp 689–701. 74 For instance, this was done through statements delivered at the Meetings of Signatories to the Deeds of Commitment in Geneva. Geneva Call has convened three such meetings to date (in 2004, 2009 and 2014). 75 Sivakumaran 2012, p 540; and Bongard and Somer 2011, pp 699–701.

15

Non-State Actors Engaging Non-State Actors …

441

this type of weapon in 2005.76 It is worth noting that the opportunity of publicizing situations of respect has proven to be particularly important for certain groups, as they may be looking for a political legitimacy or acceptance within the international community.77 For them, to be seen as respectful of humanitarian norms may be a tool to achieve political recognition and to be treated differently than a mere criminal group. On the other hand, following a field visit to Syria in 2017 to monitor engagement on child protection issues by the YPG/YPJ and the Democratic Self-Administration in Rojava, a signatory to the Deed for the Protection of Children since 2014, Geneva Call confirmed the existence of cases that constituted a violation of their commitments.78 In an official response, the ANSA admitted its responsibility and highlighted some practical challenges in this respect. It also announced new measures/provisions to be included in their internal regulations in order to address these issues, such as ‘[n]ew and rigorous internal investigation mechanisms to follow up violations resulting from recruiting or using children aged under 18 years in combat positions’ and issuing ‘an internal circular notice to all its units, forces and centres to explain their new policies and request them to abide by these new instructions’.79

15.3

Some Selected Challenges and Achievements Related to the Protection of Children in Non-International Armed Conflicts

Engaging ANSAs on humanitarian norms and increasing their level of respect is a challenging process, considering that the baseline expectation for them to comply with international law is generally low.80 Different authors have tried to explain why armed groups decide to comply or not with their obligations. It should be noted, in any case, that these are not entities that either violate or respect international law at large, but according to Geneva Call’s experience, they may instead

76

Geneva Call (2018) Destruction of 2,500 stockpiled anti-personnel mines in Western Sahara, Geneva Call, 30 May 2018. https://genevacall.org/destruction-of-2500-stockpiled-anti-personnelmines-in-western-sahara/. Accessed 3 December 2018. 77 As pointed out by Sivakumaran, ‘[a]s with much of the law of non-international armed conflict, instances of violation are publicized, leading to a perception that the law is something which is neglected or ignored. Non-state armed groups in particular are criticized for violating the law. This approach assists in the re-orientation of such perception, giving credit where it is due’ (emphasis added). Sivakumaran 2012, p 541. 78 Geneva Call (2018) Syria: new measures taken by the Kurdish People’s Protection Units to stop recruiting children under 18, Geneva Call, 22 June 2018. https://genevacall.org/syria-newmeasures-taken-by-the-kurdish-peoples-protection-units-to-stop-using-children-under-18/. Accessed 3 December 2018. 79 Ibid. 80 Jo 2017, p 69.

442

E. Heffes

follow certain rules while disregarding others.81 For instance, a group may respect the prohibition of using and recruiting children in hostilities, but at the same time summarily execute detainees or take hostages. In addition, ANSAs often modify their behaviour throughout armed conflicts, reflecting an increase or decrease in their level of commitment and compliance with humanitarian provisions. Considering ANSAs as dynamic and evolving entities is therefore essential in order for Geneva Call to identify the moments in which they can be more easily engaged. This section will draw on Geneva Call’s experiences when engaging with two ANSAs on the prohibition of using and recruiting children in hostilities: the Karen National Liberation Army (KNLA), the armed wing of the Karen National Union (KNU) in Burma/Myanmar; and the Alliance du peuple pour un Congo libre et souverain (APCLS) in the DRC. The goal is to show some of the practical challenges that may arise when attempting to engage armed groups with humanitarian norms and the solutions proposed by Geneva Call to address them.

15.3.1 The KNU/KNLA: How Organizational Issues May Affect Compliance Formed in 1947, the KNU is a political organization drawn from Burma/ Myanmar’s Karen people, the second-largest ethnic group in the country. In 1949, the KNU created the KNLA to fight on their behalf. The conflict between the government of Myanmar and the KNU/KNLA continued for decades until both parties declared a bilateral ceasefire in 2012. This was followed, in October 2015, by the signing of the Nationwide Ceasefire Agreement by the government, the KNU and other ANSAs active in that country.82 During the first few decades of the conflict, the KNLA openly accepted children into its ranks. Although this trend was acknowledged by its leaders, they contended that child recruits were in fact volunteers.83 According to an interview by Human Rights Watch (HRW) with the former KNU General Secretary Padoh Mahn Sha Lah Phan in 2002, in the late 1980s the KNLA even formed a ‘boy’s company’ of about 100 children aged between 15 and 17, but ‘disbanded it after two years because it was deemed not useful; most child soldiers after that were sent into regular units’.84 Despite the KNU’s claim about the voluntary nature of child recruitment, a quota system was seemingly applied to villages in the territories

81 82 83 84

Gross 2014, p 74. For a brief summary of the conflict, see Jo 2015, pp 203–205. Human Rights Watch 2002. Ibid.

15

Non-State Actors Engaging Non-State Actors …

443

controlled by the group, at least until the early 1990s. Families with several sons were reportedly obliged to provide at least one of them to the KNLA.85 In late 2003, the persistent presence of children in the KNLA came to the attention of the UN, and the KNU was listed by the UN Secretary-General in the annex of his report on children and armed conflict as being a group that recruits and uses children in hostilities.86 In 2005, the UN introduced an expanded listing process on the basis of UN Security Council Resolution 1539 adopted the previous year.87 Under this mechanism, the KNLA replaced the KNU88 on the list of grave violators of children’s rights, based on its reported use and recruitment of children.89 Since then, the KNLA has appeared every year in the UN Secretary-General’s report.90 Geneva Call began engaging KNU/KNLA in 2006, focusing initially on the promotion of a ban on anti-personnel mines. When it expanded its thematic areas in 2010 to include the protection of children in armed conflict, Geneva Call identified Burma/Myanmar as a suitable country where it could develop its work on this issue. When mapping the engagement process, Geneva Call approached the Human Rights Education Institute of Burma (HREIB), an NGO that had been working from Thailand for several years to raise awareness of international standards amongst ANSAs in the territory of, or with a presence in, Burma/Myanmar. Through joint activities, Geneva Call and HREIB promoted the Deed of Commitment for the Protection of Children and carried out several rounds of high-level dialogue and two training workshops with the KNU. Following these steps, in late 2012 the KNU expressed its interest to sign the abovementioned Deed and to receive technical support for both the implementation and monitoring of this commitment. In 2013, and after further rounds of dialogue and training workshops, the KNU/ KNLA signed the Deed.91 While, at that time, the KNU/KNLA asserted that there were no children within its ranks, it did admit that children below the age of 18 were sometimes voluntarily associated with the KNLA in non-military roles. When 85

Ibid. UN Secretary-General 2003, p 22. 87 In Resolution 1539, the UN Security Council requested that the UN Secretary-General ‘devise urgently’ an action plan for a comprehensive monitoring and reporting mechanism that could provide accurate and timely information on grave violations against children in armed conflicts. The resolution also called on listed parties to prepare concrete ‘action plans to halt the recruitment and use of children in violation of the international obligations applicable to them’. UN Security Council 2004. 88 This reflected a practice that began that year to name the military entity rather than the concerned State or the relevant ANSA. 89 UN Secretary-General 2005, p 38. 90 For the most recent report, see UN Secretary-General 2018, p 39. 91 Geneva Call (2013) The KNU/KNLA commits to the protection of children and the prohibition of conflict-related sexual and gender-based violence, Geneva Call, 24 July 2013. https:// genevacall.org/knuknla-commits-protection-children-prohibition-conflict-related-sexual-genderbased-violence/. Accessed 3 December 2018. 86

444

E. Heffes

providing an explanation, the KNU identified that a lack of ground-level awareness of international rules was a significant obstacle to fully achieve compliance. It also acknowledged difficulties in training its own forces, which were dispersed over a large area and located mainly in remote locations with poor communication facilities.92 In addition, its decentralized structure gives considerable autonomy to Brigade Commanders, and certain NGOs had noted that the sanctions the KNU had reportedly instituted for child recruitment appeared not to have been enforced.93 In response, Geneva Call provided training to KNU representatives on several occasions. The signing ceremony of the Deed, in this sense, facilitated a training on its provisions for focal points from most of the areas controlled by the KNU. This was soon followed by the training of trainers – consisting mainly of Brigade-level KNLA officers – with the expectation that they would go on to replicate the training in their operational areas. Geneva Call learned of a positive step after one of the trainings whereby a children’s boarding house was moved away from a military camp, an obligation that can be found in the Deed of Commitment to protect children from military operations.94 To address the decentralized nature of the ANSA, Geneva Call not only provided further training for the KNU’s high ranking officers,95 but also initiated brigade-level training as well96 and partnered with the Karen Women’s Organisation (a community-based organization with a wide reach across KNU areas) to raise awareness about the Deed of Commitment at the community-level.97 As a result, some steps were taken to end the use and recruitment of children, such as the amendment of the KNLA ‘Army Act’ to include the age of 18 as the minimum age for new recruits.98 The regular dialogue and responsive communications with Geneva Call have proven instrumental in dealing with allegations of violations by the ANSA that have arisen since the signing of the Deed. Based on Geneva Call’s experience, this example shows that ensuring ANSAs’ respect for the law depends on different factors. Three can be identified here: 92

This information was conveyed by the KNU on several occasions to Geneva Call. Child Soldiers International 2013, p 30, fn 164. 94 Geneva Call n.d. Deed of Commitment for the Protection of Children from the Effects of Armed Conflict, Article 4. 95 Geneva Call (2015) Burma/Myanmar: 40 high-ranking officers from the Karen National Liberation Army are trained on child protection, Geneva Call, 25 November 2015. https:// genevacall.org/burmamyanmar-40-high-ranking-officers-karen-national-liberation-army-trainedchild-protection/. Accessed 3 December 2018. 96 Geneva Call (2016) Burma/Myanmar: update of Geneva Call’s latest activities on gender equality and the prevention of sexual violence, Geneva Call, 21 June 2016. https://genevacall.org/ burmamyanmar-update-geneva-calls-latest-activities-gender-equality-prevention-sexual-violence/. Accessed 3 December 2018. 97 Geneva Call (2015) Burma/Myanmar: 40 high-ranking officers from the Karen National Liberation Army are trained on child protection, Geneva Call, 25 November 2015. https:// genevacall.org/burmamyanmar-40-high-ranking-officers-karen-national-liberation-army-trainedchild-protection/. Accessed 3 December 2018. 98 Information on file with the author. 93

15

Non-State Actors Engaging Non-State Actors …

445

training programs for their members on the prohibition of using and recruiting children in hostilities; clear internal rules addressing this issue; and effective sanctions for the rules to be enforced. As Bangerter has explained, ‘[a] better respect for international humanitarian law is primarily the result of inside action, and no one can respect international humanitarian law in the stead of parties to a conflict’.99 Indeed, Geneva Call’s view is that prevention and sanction mechanisms should be made more robust in order to ensure that there are no children recruited into armed groups.

15.3.2 The APCLS: How Capacity (or Lack Thereof) May Affect Compliance The Alliance du peuple pour un Congo libre et souverain (People’s Alliance for a Free and Sovereign Congo – APCLS) is considered one of the largest Mai-Mai defense groups operating in North Kivu in the DRC.100 Originally part of the Coalition of Congolese Patriotic Resistance (PARECO), it was officially founded in Nyabiondo, Masisi, in 2008, when it refused to sign the Goma Accords and to be integrated into the DRC’s armed forces. It is led by ‘General’ Janvier Buingo Karairi and draws most of its support from the local Hunde population. The APCLS has been listed in the annual reports of the UN Secretary-General since 2013 as responsible for using and recruiting children in hostilities.101 When Geneva Call began engaging this group in 2015, it was difficult to estimate the number of children incorporated into its forces. It had been reported that much of the recruitment was ‘voluntary’ and done generally with the tacit acquiescence of parents and/or guardians.102 In several cases, families did not prevent their children from joining, often even encouraging them to do so.103 It appears that the real or perceived threat of other armed actors was a strong driving factor for child recruitment. For instance, when the Nyatura group was created in November 2012, the Hunde community provided the APCLS with many children to defend the local population.104 Thus, forced recruitment seemed to coincide with an escalation of hostilities and periods of heavy and deadly fighting. In an interview in 2012, a former member of the group explained that ‘[i]n general, we did not force people,

99

Bangerter 2015, p 113. The term Mai-Mai (Mayi-Mayi) refers to a range of ethnically defined ANSAs that usually claim autochthony and have operated in the DRC since the 1960s on all sides of the political spectrum. The term means ‘water’ and relates to supposed magical powers that protect fighters from enemy bullets. Mampilly 2011, p 180, fn 13. 101 For the most recent report, see UN Secretary-General 2018, p 39. 102 UN Security Council 2014, p 35. 103 See Coalition to Stop the Use of Child Soldiers 2010, p 9. 104 Information on file with the author. 100

446

E. Heffes

but as soon as the number of effectives diminished through combat, we took the young by force’.105 The first interaction between Geneva Call and the APCLS was established in 2015 through a local community-based organization. Since then, Geneva Call met the ANSA’s leadership on many occasions, conducted trainings on international law for both its officers and fighters. During these meetings and sessions, the APCLS explained their policies and practices, in particular the prohibition of using and recruiting children, and expressed interest in improving compliance with the applicable legal framework. Though they claimed not to recruit individuals under 18 years old, the ANSA agreed to amend its internal code of conduct to include a specific provision on the minimum age of recruitment.106 Since the early stage of its engagement, Geneva Call raised concerns about alleged violations against children, in particular cases of their recruitment and use in hostilities as detailed in the UN Secretary-General annual reports on children and armed conflict. The APCLS claimed that it was not aware of these reports nor of its inclusion in the list of parties that have committed such violations as included in the reports. In September 2015, the abovementioned ‘General’ Janvier Buingo Karairi wrote a letter to the UN Secretary-General denying the allegations, recalling the APCLS’ 18-years-old recruitment policy and inviting the UN to conduct field investigations in areas under its control.107 The invitation was sent again in November 2016 to the UN Special Representative of the Secretary-General on children and armed conflict.108 Despite these positive steps, the ANSA’s leadership shared with Geneva Call that age verification during the recruitment of new members remained an important challenge. The APCLS publicly affirmed that they had difficulties in this area, notably due to the malnutrition of young people, which made volunteers appear older than their real age. They admitted relying mainly on physical appearance but also claimed to recruit only those who possessed birth certificates or electoral cards. In case such documents were not available, they would check with their relatives and local communities. Hence, in addition to sensitizing the group with respect to its humanitarian obligations, Geneva Call also provided a briefing on how to verify the age of an individual. In November 2016, the APCLS signed the Deed of Commitment for the Protection of Children from the Effects of Armed Conflict, confirming its pledge to prohibit all forms of child recruitment and their use in hostilities. The importance of this case is mainly from a practical perspective, as it shows that ANSAs should not only receive training on the relevant legal framework, but also on the various technical issues that will help them to acquire the necessary capacity to be able to implement their international obligations.

105 106 107 108

Richards 2014, p 317. APCLS 2015, Article 6. Information on file with the author. Ibid.

15

Non-State Actors Engaging Non-State Actors …

15.4

447

Concluding Remarks: The Importance of Geneva Call Engaging ANSAs

Since its creation in 2000, Geneva Call has engaged with more than 120 ANSAs worldwide, and, as of 2019, 64 have signed one or more Deeds of Commitments. Overall, their compliance record has been good. Except in a few cases, no conclusive evidence of violations by ANSAs have been found. Signatory ANSAs have taken concrete measures to implement their commitments, such as the demobilizing child soldiers and destroying their stockpiled anti-personnel mines. In some countries, the commitments made by ANSAs were instrumental in the launch of much-needed assistance programs by specialized humanitarian organizations. In addition, as a result of Geneva Call’s efforts, a number of other ANSAs that have not signed the Deeds of Commitment have made similar undertakings to protect civilians from the effects of armed conflict. Some have even agreed to cooperate with the government of the very State they are fighting against for the sake of humanitarian outcomes (for example, by carrying out demining activities). Of course, important challenges remain, as the above cases have shown. A number of ANSAs reject international law, or some of its rules, for ideological, military or other reasons. The fragmentation of ANSAs is also a challenge. Indeed, some groups split into various factions which operate autonomously. Groups with a decentralized structure, which are less dependent on a central coordination, such as the KNU/KNLA, can risk running afoul of their compliance obligations through the actions of their more autonomous units. These scenarios very much complicate dialogue and the continuity of commitments that are eventually made. Some ANSAs have bound themselves to certain norms but still lack the capacity to enforce full compliance with them. The APCLS’ case and their lack of an age-assessment mechanism that could assist them in respecting the prohibition of using and recruiting children below the age of 18 is a clear example of this situation. Another major challenge is access to ANSAs themselves, which is limited in some countries due to security concerns and/or travel restrictions imposed by the relevant State(s). In addition, some States have adopted measures that prohibit, and even criminalise, dialogue with ANSAs designated as ‘terrorist organizations’ and/ or have introduced no-contact conditions in their funding agreements.109 This, however, is not always the case, and some States have sometimes even cooperated with the humanitarian engagement of ANSAs, for instance, by allowing Geneva Call to work on their territories.110

109

See in this sense, US Supreme Court, Holder v. Humanitarian Law Project et al., 561 U.S. 1 (2010). 110 At the initiative of Geneva Call, some of them, such as the Philippines, Senegal, and Sudan, have even agreed to meet opposing ANSAs to discuss humanitarian issues. Others have funded Geneva Call to engage with ANSAs included on their ‘terrorist lists’. Bongard 2013.

448

E. Heffes

As can be seen, despite these challenges, Geneva Call’s experience suggests that it is possible to engage ANSAs on protection issues and that a constructive approach can be effective in enhancing their compliance with humanitarian norms. This shows that international law does not relate exclusively to States anymore, but that there are dialogues, conversations, exchanges, and negotiations actively taking place between non-State actors. This is a reality that can no longer be ignored.

References Arjona A et al (eds) (2015) Rebel Governance in Civil War. Cambridge University Press, Cambridge. APCLS (2015) Règles de la Guerre dans le Mouvement Alliance du Peuple pour un Congo libre et souverain. http://theirwords.org/media/transfer/doc/apcls_regle_de_la_guerre_2015de43f439e7bb54263caec76dcbf0a2bd.pdf. Accessed 3 December 2018. Bangerter O (2008) The ICRC and Non-State Armed Groups. In: Geneva Call, PSIO and UNIDIR (eds) Exploring Criteria and Conditions for Engaging Armed Non-State Actors to Respect Humanitarian Law and Human Rights Law, http://www.unidir.org/files/medias/pdfs/ conference-report-eng-0-107.pdf. Accessed 13 August 2019, pp 74–85. Bangerter O (2011) Reasons why armed groups choose to respect international humanitarian law or not. International Review of the Red Cross 93(882):353–384. Bangerter O (2015) Comment – persuading armed groups to better respect international humanitarian law. In: Krieger H (ed) Inducing Compliance with International Humanitarian Law. Lessons from the African Great Lakes Region. Cambridge University Press, Cambridge, pp 112–124. Bellal A (2018) The War Report. Armed Conflicts in 2017. https://www.geneva-academy.ch/ joomlatools-files/docman-files/The%20War%20Report%20Armed%20Conflicts%20in%202017.pdf. Accessed 20 August 2018. Bennoune K (2012) Productive tensions: women’s rights NGOs, the “mainstream” human rights movement, and international lawmaking. In: Bailliet C (ed) Non-State Actors, Soft Law and Protective Regimes. From the Margins. Cambridge University Press, Cambridge, pp 125–150. Blakke K et al (2015) The problem with fragmented insurgencies. The Washington Post. https:// www.washingtonpost.com/news/monkey-cage/wp/2015/05/13/the-problem-with-fragmentedinsurgencies/?noredirect=on&utm_term=.7c8f0edbf751. Accessed 13 August 2019. Bongard P (2010) Le Rôle des Organisations Non Gouvernementales dans L’Incitation des Groupes Armés Au Respect du Droit International Humanitaire: L’Expérience de l’Appel de Genève. In: Sorel J-M, Fouchard I (eds) Les tiers aux conflits armés et la protection des populations civiles. Pedone, Paris, pp 153–172. Bongard P (2013) Engaging armed non-state actors on humanitarian norms: reflections on Geneva Call’s experience. HPN–Humanitarian Practice Network. https://odihpn.org/magazine/ engaging-armed-non-state-actors-on-humanitarian-norms-reflections-on-geneva-call%C2% 92s-experience/. Accessed 3 December 2018. Bongard P, Somer J (2011) Monitoring armed non-state actor compliance with humanitarian norms: a look at international mechanisms and the Geneva Call Deed of Commitment. International Review of the Red Cross 93(883):673–706. Breton-Le Goff G (2011) NGOs’ perspectives on non-state actors. In: d’Aspremont (ed) Participants in the International Legal System. Multiple perspectives on non-state actors in international law. Routledge, London/New York, pp 248–266.

15

Non-State Actors Engaging Non-State Actors …

449

Bruderlein C (2000) The role of non-state actors in building human security. The case of armed groups in intra-state wars. https://www.files.ethz.ch/isn/7284/doc_7302_290_en.pdf. Accessed 3 December 2018. Cassese A (2005) International Law. Oxford University Press, Oxford. Charnovitz S (2006) Nongovernmental Organizations and International Law. American Journal of International Law 100(2):348–372. Chen L-C (2015) An Introduction to Contemporary International Law. A Policy-Oriented Perspective, 3rd edn. Oxford University Press, Oxford/New York. Child Soldiers International (2013) Chance for change. Ending the recruitment and use of child soldiers in Myanmar. https://www.child-soldiers.org/Handlers/Download.ashx?IDMF= 14381967-3571-4ffa-939f-88aad2d7f453. Accessed 10 December 2018. Chinkin C, Kaldor M (2017) International Law and New Wars. Cambridge University Press, Cambridge. Coalition to Stop the Use of Child Soldiers (2010) Briefing Paper. Democratic Republic of the Congo. Mai Mai Child Soldier Recruitment and Use. Entrenched and Unending. https://www1. essex.ac.uk/armedcon/story_id/000910.pdf. Accessed 3 December 2018. Decrey Warner E (2010) Characteristics and motivations of organized armed groups. In: Odello M, Beruto GL (eds) Non-State Actors and International Humanitarian Law. Organized armed groups: a challenge for the 21st century. IIDH, San Remo, pp 59–66. Fazal T (2018) Wars of Law. Unintended Consequences in the Regulation of Armed Conflict. Cornell University Press, Cornell. Fortin K (2017) The Accountability of Armed Groups Under Human Rights Law. Oxford University Press, Oxford. Geneva Academy of International Humanitarian Law and Human Rights (2011) Rules of Engagement. Protection Civilians through Dialogue with Armed Non-State Actors. https://www.genevaacademy.ch/joomlatools-files/docman-files/Research%20documents/Rules-of-Engagement-EN. pdf. Accessed 13 August 2019. Geneva Call (n.d.) Deed of Commitment under Geneva Call for Adherence to a Total Ban on Anti-Personnel Mines and for Cooperation in Mine Action. https://www.genevacall.org/wpcontent/uploads/2019/07/DoC-Banning-anti-personnel-mines.pdf. Accessed 13 August 2019. Geneva Call (n.d.) Deed of Commitment under Geneva Call for the Protection of Children from the Effects of Armed Conflict. https://www.genevacall.org/wp-content/uploads/2019/07/DoCProtecting-children-in-armed-conflict.pdf. Accessed 13 August 2019. Geneva Call (n.d.) Deed of Commitment under Geneva Call for the Prohibition of Sexual Violence in Situations of Armed Conflict and Towards the Elimination of Gender Discrimination. https://www. genevacall.org/wp-content/uploads/2019/07/DoC-Prohibiting-sexual-violence-and-gender-discrimination.pdf. Accessed 13 August 2019. Geneva Call (n.d.) Deed of Commitment for the Protection of Health Care in Armed Conflict. https://www.genevacall.org/wp-content/uploads/2019/07/Deed-of-Commitment-for-the-protec tion-of-health-care-in-armed-conflict-final-version-4.pdf. Accessed 13 August 2019. Geneva Call (n.d.) How we work. https://www.genevacall.org/how-we-work/. Accessed 13 August 2019. Geneva Call (n.d.) What we do. https://www.genevacall.org/what-we-do/. Accessed 13 August 2019. Geneva Call (n.d.) Where we work. https://www.genevacall.org/where-we-work/. Accessed 13 August 2019. Geneva Call (2004) An Inclusive Approach to Armed Non-State Actors and International Norms: Report of the First Meeting of Signatories to Geneva Call’s Deed of Commitment. https:// www.files.ethz.ch/isn/38578/gc-nsa-report-o5.pdf. Accessed 13 August 2019. Geneva Call (2006) Armed Non-State Actors and Landmines. Volume II: A Global Report of NSA Mine Action. https://www.genevacall.org/wp-content/uploads/2019/02/2.pdf. Accessed 13 August 2019.

450

E. Heffes

Geneva Call (2007) Engaging Armed Non-State Actors in a Landmine Ban. The Geneva Call Progress Report 2000–2007. https://www.files.ethz.ch/isn/100311/gc-progress-report-07.pdf. Accessed 13 August 2019. Geneva Call (2016) In Their Words: Perceptions of Armed Non-State Actors on Humanitarian Action. https://www.genevacall.org/wp-content/uploads/2019/05/WHS_Report_2016_web.pdf. Accessed 13 August 2019. Geneva Call (2017) Armed non-State actors speak about child protection in armed conflict. Meeting Report 22–24 November 2016. https://www.genevacall.org/wp-content/uploads/2019/ 05/CansaReport_web.pdf. Accessed 13 August 2019. Gillard E-C (2016) Promoting Compliance with International Humanitarian Law. https://www. chathamhouse.org/sites/default/files/publications/research/2016-10-05-promoting-complianceihl-gillard.pdf. Accessed 3 December 2018. Gross M (2014) The Ethics of Insurgency. A Critical Guide to Just Guerrilla Warfare. Cambridge University Press, Cambridge. Hazen JM (2013) What Rebels Want. Resources and Supply Networks in Wartime. Cornell University Press, Cornell. Heffes E, Kotlik M (2014) Special agreements as a means of enhancing compliance with IHL in non-international armed conflicts: An inquiry into the governing legal regime. International Review of the Red Cross 96(895/896):1195–1224. Heintze H-J, Lülf C (2015) Non-State Actors Under International Humanitarian Law. In: Noortmann M et al (eds) Non-State Actors in International Law. Hart Publishing, Oxford/ Portland, pp 97–112. Hofmann C, Schneckener U (2011) Engaging non-state armed actors in state and peace-building: options and strategies. International Review of the Red Cross 93(883):603–621. Human Rights Watch (2002) My Gun Was as Tall as Me. Child Soldiers in Burma. https://www. hrw.org/reports/2002/burma/Burma0902.pdf. Accessed 3 December 2018. Immigration and Refugee Board of Canada (2015) South Sudan: Reports of forcible recruitment and military conscription by the government and armed groups. https://www.refworld.org/ docid/571f17bf4.html. Accessed 3 December 2018. International Committee of the Red Cross (2018) The Roots of Restraint in War. ICRC, Geneva. International Committee of the Red Cross (2008) Increasing Respect for International Humanitarian Law in Non-International Armed Conflicts. https://www.icrc.org/sites/default/ files/topic/file_plus_list/0923-increasing_respect_for_international_humanitarian_law_in_noninternational_armed_conflicts.pdf. Accessed 20 August 2018. Jo H (2015) Compliant Rebels. Rebel Groups and International Law in World Politics. Cambridge University Press, Cambridge. Jo H (2017) Compliance with International Humanitarian Law by Non-State Armed Groups: How Can It Be Improved? Yearbook of International Humanitarian Law 19:63–88. Krieger H (2015) Introduction. In: Krieger H (ed) Inducing Compliance with International Humanitarian Law. Lessons from the African Great Lakes Region. Cambridge University Press, Cambridge, pp 1–10. Landmine & Cluster Munition Monitor (2018) Landmine Monitor. A Global Overview of Banning Antipersonnel Mines. http://the-monitor.org/en-gb/reports/2018/landmine-monitor-2018/banpolicy.aspx. Accessed 12 December 2018. Mampilly Z (2011) Rebel Rulers. Insurgent Governance and Civilian Life during War. Cornell University Press, Cornell. Maurer P (2016) Uphold the norms that safeguard humanity. High-level Leaders’ Roundtable. https://www.icrc.org/en/document/uphold-norms-safeguard-humanity-speech-icrc-president. Accessed on 3 December 2018. Murray D (2016) Human Rights Obligations of Non-State Armed Groups. Hart Publishing, Oxford/Portland. Noortmann M (2015) Non-Governmental Organisations. Recognition, Roles, Rights and Responsibilities. In: Noortmann M et al (eds) Non-State Actors in International Law. Hart Publishing, Oxford/Portland, pp 205–224.

15

Non-State Actors Engaging Non-State Actors …

451

Richards J (2014) Forced, coerced and voluntary recruitment into rebel and militia groups in the Democratic Republic of Congo. The Journal of Modern African Studies 52(2):301–326. Rodenhäuser T (2018) Organizing Rebellion. Non-State Armed Groups under International Humanitarian Law, Human Rights Law, and International Criminal Law. Oxford University Press, Oxford. Ryngaert C (2010) Imposing International Duties on Non-State Actors and the Legitimacy of International Law. In: Noortmann M, Ryngaert C (eds) Non-State Actor Dynamics in International Law: From Law-Takers to Law-Makers. Ashgate, Farnham, pp 69–90. Sassòli M (2007) The Implementation of International Humanitarian Law: Current and Inherent Challenges. Yearbook of International Humanitarian Law 10:45–73. Sassòli M (2010) Taking Armed Groups Seriously: Ways to Improve their Compliance with International Humanitarian Law. Journal of International Humanitarian Legal Studies 1:5–51. Schneckener U, Hofmann C (2015) The power of persuasion. The role of international non-governmental organizations in engaging armed groups. In: Krieger H (ed) Inducing Compliance with International Humanitarian Law. Lessons from the African Great Lakes Region. Cambridge University Press, Cambridge, pp 79–111. Sinno A (2008) Organizations at War in Afghanistan and Beyond. Cornell University Press. Cornell. Sivakumaran S (2012) The Law of Non-International Armed Conflict. Oxford University Press, Oxford. Sivakumaran S (2015) Implementing humanitarian norms through non-State armed groups. In: Krieger H (ed) Inducing Compliance with International Humanitarian Law. Lessons from the African Great Lakes Region. Cambridge University Press, Cambridge, pp 125–146. Staniland P (2014) Networks of Rebellion. Explaining Insurgent Cohesion and Collapse. Cornell University Press, Cornell. UN Secretary-General (2003) Children and armed conflict. A/58/546-S/2003/1053. UN Secretary-General (2005) Children and armed conflict. A/59/695-S/2005/72. UN Secretary-General (2018) Children and armed conflict. A/72/865-S/2018/465. UN Security Council (2004), UN Doc. S/RES/1539 (2004). UN Security Council (2014) Letter dated 22 January 2014 from the Coordinator of the Group of Experts on the Democratic Republic of the Congo addressed to the President of the Security Council. S/2014/42. Weinstein J (2007) Inside Rebellion. The Politics of Insurgent Violence. Cambridge University Press, Cambridge. Zegveld L (2002) The Accountability of Armed Opposition Groups in International Law. Cambridge University Press, Cambridge.

Ezequiel Heffes is a Thematic Legal Adviser at Geneva Call, a humanitarian NGO that promotes respect of humanitarian norms by armed non-State actors. Ezequiel holds an LL.M. in IHL and Human Rights from the Geneva Academy, and a law degree from the University of Buenos Aires, School of Law. Prior to joining Geneva Call, he worked as a field and protection delegate and as a head of office for the ICRC in Colombia, Afghanistan and the Democratic Republic of Congo. He has participated in different research projects and has published various articles and book chapters on different international law issues. He is currently working on a monograph on detention by non-State armed groups under international law with Cambridge University Press. Ezequiel is a co-editor of the Armed Groups and International Law blog. The views expressed here are solely those of the author in his private capacity and do not necessarily represent those of any institution. The author would like to thank Pascal Bongard for his comments and suggestions.