Transforming the Existing International Humanitarian Law Term Paper

The Rise of Non-State Actors in International Conflict

International terrorism has led to the rise of armed non-state actors as key players in the international conflict. The shift is a departure from past conflicts that only involved states. The legal frameworks that have been inexistence since the inception of the United Nations approached international conflict from the point of view of the state players. Therefore, applying the same laws on non-state actors presents various legal and practical challenges. According to Paust, conflict that involves one or more non-state actors is referred to as non-international armed conflict (NIAC).¹ International humanitarian law (IHL) has expressly defined what constitutes an international conflict. As Chelimo reveals, Article 2 of the Geneva Convention II of 1949 defines international conflict as a conflict that takes place between two or more contracting parties.² This definition limits the scope of the international conflict to state actors. Going by Article 2, the situation does not qualify to be an international conflict if one of the parties is a non-state actor even if the said party (non-state actor) is based in a different region.

The Geneva Convention further provides a room for a conflict that involves a non-state actor. Article 3 excludes acts of violence such as riots from the definition of NIAC.³ However, this exclusion is somewhat ambiguous since it leaves the state with the power to decide whether a conflict occurring within its territory falls under the definition of Article 3 of the Geneva Convention or not. Bellal, Giacca, and Casey-Maslen used the case of military aggression in the Chechnya region of Russia to illustrate this power granted to the state by the Common Article 3.⁴ The Russian government had been unwilling to admit that the Chechnya conflict constituted an NIAC. Similarly, the British government was faced with a scenario that in all practicality would amount to an NIAC during the resistance staged by rebels in Northern Ireland.⁵ According to Sassoli, states may decline to acknowledge that what they have at hand is an NIAC since such a move would confer some form of status to the rebels.⁶ Sassoli further adds that recognizing the domestic unrest as an internal armed conflict would mean equal application of IHL to the state and the non-state enemy.⁷

When a situation is declared an armed conflict, IHL is invoked. Two variables are used to regard a situation as an armed conflict. The variables include the ability of the non-state actor to organize its members and the intensity of the violence. Today, most of the armed conflicts occur within state boundaries, thus qualifying to be deemed NIACs. Notwithstanding, few international legislations have been put in place to address this scenario. This situation has made compliance with IHL difficult due to the absurdity posed by the various scenarios that ensue from time to time. One major concern that arises with respect to a conflict involving non-state actors revolves around protecting civilians and prisoners of war (POWs). IHL seeks to hold non-state actors liable for their actions if they violate the rights of the protected persons. Under the current framework of IHL, non-state actors are to be held accountable for their actions during a conflict.

Although non-state actors have always formed part of conflicts, the role they play has changed over time and so have the threats that they pose to international peace. Particularly, there is a growing concern that non-state actors could use deadly weapons in their attacks. Recent militarization has led to many countries owning numerous weapons, among them nuclear warheads. There is a growing fear across the world that terrorists could gain access to some of these weapons. According to Woolf, Russia owns 78% of the world’s nuclear warheads, yet there have been questions about the security of the weapons under Russia’s guard.⁸ The current legislation in the international arena to prevent or reduce militarization of non-state actors is said to be inadequate. Therefore, this issue of misuse of weapons by non-state actors remains unanswered, particularly regarding the legal accountability of these actors. In other words, no excellent laws have been established to hold these non-state actors accountable for their irresponsible use of military weapons.

Non-state actors take part in conflict at international or domestic level. Where state actors are engaging in the international conflict, the humanitarian law has been somewhat effective in addressing the outcomes of such conflicts. Such outcomes include national resistance, foreign occupation, and liberation movements. This category of armed conflict is accorded the lawful status of combatants. However, the problem with the application of IHL arises where NIAC is involved because while IHL recognizes these non-state armed groups as combatants, it does not accord them the POW status. Lack of recognition of these two categories raises the question of whether the same law that does not distinguish them can hold them accountable for the violations they commit.

In addressing the question of the applicability of IHL on non-state actors, it is important to observe that after World War II, IHL shifted its focus from guiding state dealings to protecting civilians. Treaties of IHL that had been in existence before this important shift were either supplemented or totally replaced with the Geneva Conventions enacted in 1949 and their Additional Protocols of 1977 and 2005. In addition, after 1945, most armed conflicts occurred within state territories, leading to a change in the “culture of war.” Access to advanced weapons in the post-1945 era worked to fuel this new shift toward armed internal conflicts. Therefore, the situation witnessed today is an extension of the post-world War II climate where non-state groups have access to military strength. This background informed the conception and subsequent adoption of Article 3 of the Geneva Conventions (1949) and the Additional Protocol II enacted in 1977. These two clauses were put in place to address the position of non-state actors regarding armed conflict.

Under the Common Article 3, non-state actors in an NIAC are to be held accountable under IHL. However, two problems arise when it comes to applying IHL treaties on non-state actors. The first problem arises from the fact that treaties are only applicable to states that have ratified them. Therefore, different treaties will apply to different conflicts, thus creating a lack of uniformity in how IHL is applied. While it is true that the Geneva Conventions have been ratified universally, it is not the same case for the other IHL treaties and the Additional Protocol of 1977. Currently, 165 states have ratified the Additional Protocol II. Hence, several states experience armed conflicts that have not ratified the Additional Protocol as well as other IHL treaties. This problem has been partially solved by making the Common Article 3 a universally accepted provision for dealing with armed conflict.

The second problem is caused by the fact that IHL treaty is not applicable to the majority of the cases of NIACs. Apart from the Common Article 3 and Additional Protocol II, very few other treaties relate to NIAC. Solis identifies these treaties as the CCW (amended), the Ottawa Treaty, the Rome Statute of International Criminal Court, the Hague Convention for the protection of cultural property (including its second protocol), and the chemical weapons convention.⁹ While the Common Article 3 is an important legislation regarding IHL, it provides only a basis for humanitarian standards. Thus, it is inadequate to address the increasingly complex scenarios posed by non-state actors. Similarly, the Additional Protocol II, which serves to supplement the Common Article 3 cannot be said to be an adequate regulation for humanitarian law. However, over the last few decades, numerous IHL legislations have been created. This situation has the effect of shaping the customary law. Therefore, the emerging body of customary law can be said to be contributing toward filling the existing IHL gaps.

Despite the emergence of customary law, the problem of ensuring that non-state actors comply with IHL continues to persist, particularly regarding NIAC. Schmitt observes that a person who qualifies for protection in armed international conflict easily becomes a criminal under NIAC.¹⁰ While combatants in NIAC are to be accorded similar protection as those available for fighters in international armed conflict, they are not accorded the status of POW. This situation explains the disparity in protection and rights, which are occasioned by the qualifying nature of the existing laws between the two types of conflict. The issue that arises here is that of legitimacy where combatants under NIAC are not accorded special protection by IHL. For this reason, it would be difficult for them to accept the restrictions imposed on them by the same legal framework that denies them authenticity. Therefore, by denying non-state actors legal recognition, IHL negates the likelihood that they will comply with humanitarian law.

The aspect of inequality of arms also arises often when discussing the compliance of non-state actors with IHL. Inequality of arms refers to a scenario where one actor (usually the state) has much more advanced weaponry and economic capacity compared to the other (non-state) actor. Thornton explains that the term “asymmetric warfare” has been coined to describe this inequality.¹¹ Asymmetric warfare can occur on three different levels, namely, operational level, military strategic level, and strategic political level. According to Roberts and Sivakumaran, non-state actors often argue that they lack the right machinery to achieve compliance with IHL.¹² They may further argue that by focusing solely on methods and means of war, yet ignoring the issue of legitimacy, IHL exists for the state actors. Thus, non-state actors are likely to find IHL biased toward state actors and consequently biased toward them (non-state actors).

International responsibility is usually considered a feature of the state since states are seen as the key players of international law. To begin with, non-state actors do not sign treaties. Therefore, it would be somewhat impractical to hold them accountable according to these treaties that they are not a party to.¹³ According to Dorr and Schmalenbach, the argument that treaties can be extended to third parties has been dismissed .¹⁴ Article 35 relates to third-party states. It does not address non-state actors in any way .¹⁵ Kalshoven and Zegveld argue that non-state actors can only be bound if they give their consent to be bound.¹⁶ Relying on voluntariness can be problematic since few non-state actors, if any, will agree to be bound by IHL treaties in the first place because non-state actors thrive in their ability to be ‘free’ from restrictions imposed by either their state or at the international level. However, it has been argued that the impossibility of getting non-state actors to ratify IHL treaties can be negated by invoking the international customary law, which applies universally. Unlike the treaties, the international customary law does not require to be ratified for it to apply.

The Treatment of Terrorists as Lawful/Unlawful Combatants

This section will discuss the position of IHL regarding persons considered ‘unlawful combatants.’ According to Hoffman, the origin of the term unlawful combatants is traced to the World War II where it was used to describe German saboteurs.¹⁷ When captured, unlawful combatants would be executed. They included guerrillas and spies. However, this early scope of unlawful combatants does not come close to defining terrorism. Terrorist activity is unique from previous unlawful combat for various reasons. First, terrorists usually target groups or sites, which enjoy protection under IHL.¹⁸Second, terrorists do not have a claim to any form of authority in carrying out their attacks. In other words, terrorist activities are prima facie unlawful under international law.¹⁹ Terrorists do not form part of a country’s military. They often attack during peaceful times when there would be no reasonable cause for military aggression.²⁰ These factors make terrorism a special form of conflict.

No single definition of terrorism is universally accepted. However, based on the nature of their activities, terrorists can be said to be non-state actors whose activities are designed to cause harm to protected persons and infrastructure. Hoffman argues that terrorists are lawful combatants but should instead be categorized as unlawful belligerents.²¹ Obviously, this classification raises various legal challenges, especially regarding how such persons should be handled in the event they are captured. Because they are not eligible to the status of POW, terrorists cannot be eligible for release. Under IHL, POWs are to be released once the conflict is over. The repartition of terrorists may also bring forth practical challenges since their home countries may be unwilling to take them back given the ‘tag of terror’ they carry with them.

The set of laws that bind the legitimacy of combat presume that states are the only justifiable players, which are proficient enough to declare and fight it (combat). Nevertheless, current developments, especially in the period following the 9/11 incident, have revealed the authentic permissible challenges that result from the fight against non-state players, for instance, al-Qaeda and ISIS, and the embracing of non-conventional combat. The post-9/11 war on terror shaped the way terrorism was viewed at the global level. After the 9/11 incident, the Bush Administration declared that it was entering an international armed conflict with a non-state actor, namely, the Al-Qaida.²²

Heinze observes that the war on terror is transforming IHL, especially in relation to a conflict involving non-state actors.²³ International law is a dynamic framework that changes to accommodate the ever-changing global arena. According to PoKempner, the emergence of organized terror coupled with access to weapons of mass destruction has transformed terrorism into a force that cannot be ignored.²⁴ How the world responds to terrorism (or more precisely how the war on terror is waged) will determine how IHL evolves in the years to come. Of importance is the need to ensure that measures taken to contain the growing vice of terrorism observe human rights and human dignity.²⁵

Issues such as the response to terrorism coupled with a robust counterterrorism framework both domestically and at the global arena have contributed to the diminishing lines between terrorism and armed conflicts. The result of this development has been the adverse effects on IHL. There is a growing tendency by states to view any form of violence carried out by an armed non-state group as constituting terrorism, regardless of whether such acts are lawful under IHL or not. As observed earlier, states deliberately refuse to acknowledge the existence of an armed conflict within their territory for fear that this move would “legitimize” the non-state actor.²⁶ The net effect of this denial is that the application of IHL becomes either limited or suspended.

In a conflict involving a state actor and a non-state player, IHL would attempt to strike a balance between the interests of the parties to the conflict. While a common ground prevails between the legal frameworks put in place to fight terrorism and IHL, the two strategies (terrorism and IHL) are fundamentally different in their approach to armed conflict. Their rationale, structure, and objectives are essentially diverse. For instance, IHL classifies armed conflict as either lawful or unlawful based on the circumstances surrounding it. In this light, attacking the other party’s lawful targets is considered legitimate since the aim of armed conflict is to defeat the opponent. On the other hand, legal frameworks against terrorism often declare any act of violence by a non-state actor illegal, regardless of whether it is directed at lawful targets or not. The principle of equality of belligerents does not apply when it comes to terrorism since one of the parties (the non-state actor) has already been declared illegitimate.

Nevertheless, overlaps between IHL and counterterrorist legislation are common. Sometimes, domestic governments regard specific acts that are already unlawful under IHL as “terrorist” activities. This approach results in the duplicity of legislation. Importantly, the government may view acts that are lawful under IHL as terrorism. The result is that the application of IHL is negated.²⁷ Armed conflict is premised on the common understanding that it may need to attack the legal targets of the other party for either of them (parties) to win the conflict. Therefore, such an attack would be legal under IHL. In all fairness, it should not be criminalized under domestic (anti-terrorist) laws. Importantly, criminalizing attacks on lawful targets can lead to non-compliance with IHL by the non-state actor. Article 6(5) of the Additional Protocol II is designed to grant the widest possible amnesty to combatants who do not cause serious violations of IHL. This provision calls for parties to a conflict to play by the rules to minimize collateral damage. Therefore, it is only fair for non-state actors who are careful to attack the lawful targets not to be branded as terrorists.

It emerges that the war on terrorism has threatened the stability of IHL. Various international bodies, among them the International Committee of the Red Cross (ICRC), have been opposed to the notion of the ‘Global War on Terror.’ According to Fenton and Price, the term “foreign fighters” is not recognized by IHL.²⁸ Foreign fighters are individuals who travel abroad to fight for a non-state actor in a country other than that of their origin. A classic example of foreign fighters are the al-Qaeda armed forces that carried out the 9/11 attack within the US territory. States have responded to terror attacks by adopting measures, among them, detention, the use of force, and travel bans. In so doing, the nations often ignore the IHL framework regarding armed conflict. Under Article 4 of the Fourth Geneva Convention (1949), the state is obliged to grant POW status to persons it detains during armed conflict, provided they are not citizens of the detaining nation.²⁹ In this light, nations would be obliged to grant suspected terrorists the status of protected persons.

Conclusion

The increase in cases of armed conflicts involving non-state actors is transforming the existing IHL framework. The Common Article 3 recognizes armed conflicts between a state-actor and non-state player within the territory of the high contracting party. However, global terrorism has led to a scenario where state actors are engaged in armed conflict with non-state parties at the international stage. As a result, stakeholders are divided as to whether suspected terrorists should be accorded the status of protected persons under IHL. In addition, IHL comes into conflict with domestic counterterrorist laws regarding whether activities that are considered lawful under IHL should be declared illegal under domestic antiterrorist laws. ICRC, a global non-state actor, has maintained that terrorism should be addressed within the existing IHL framework, including granting terrorists the status of protected persons.

Bibliography

Bellal, Annyssa, Gilles Giacca, and Stuart Casey-Maslen. “International Law and Armed Non-state Actors in Afghanistan.” International Review of the Red Cross 93, no. 881 (2011): 47-79.

Chelimo, Gertrude. “Defining Armed Conflict in International Humanitarian Law.”Law and Justice. Web.

Dorr, Oliver, and Kirsten Schmalenbach. Vienna Convention on the Law of Treaties: A Commentary. Berlin: Springer Science & Business Media, 2011.

Fenton, Adam, and David Price. “Breaking ISIS: Indonesia’s Legal Position on the ‘Foreign Terrorist Fighters’ Threat.” Australian Journal of Asian Law 16, no. 1 (2015): 1-18.

Heinze, Eric A. “The Evolution of International Law in Light of the ‘Global War on Terror.’” Review of International Studies 37, no. 3 (2011): 1069-1094.

Hoffman, Michael. “Terrorists are Unlawful Belligerents, not Unlawful Combatants: A Distinction with Implications for the Future of International Humanitarian Law.” Case Western Reserve Journal of International Law 34, no. 2 (2002): 227-230.

Kalshoven, Frits, and Liesbeth Zegveld. Constraints on the Waging of War: An Introduction to International Humanitarian Law. Cambridge: Cambridge University Press, 2011.

Paust, Jordan. “The Right to Life in Human Rights Law and the Law of War.”Law Review. Web.

PoKempner, Dinah. “The “New” Non-State Actors in International Humanitarian Law.” George Washington International Law Review 38, no. 3 (2006): 551-560.

Roberts, Anthea, and Sandesh Sivakumaran. “Lawmaking by Nonstate Actors: Engaging Armed Groups in the Creation of International Humanitarian Law.” Yale Journal of International Law 37, no. 1 (2012): 107-152.

Sassoli, Marco. “Use and Abuse of the Laws of War in the War on Terrorism.” Law & Inequality 22, no. 1 (2004): 195-221.

Schmitt, Michael. Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance. Netherlands: TMC Asser Press, 2011.

Solis, Gary. The Law of Armed Conflict: International Humanitarian Law in War. Cambridge: Cambridge University Press, 2016.

Thornton, Rod. Asymmetric Warfare: Threat and Response in the 21st Century. Cambridge: Polity, 2007.

Woolf, Amy. Nuclear Weapons in Russia: Safety, Security, and Control Issues. Bellevue: Congressional Research Service, 2003.

Footnotes

1. Jordan Paust, “The Right to Life in Human Rights Law and the Law of War,” Law Review, Web.
2. Gertrude Chelimo, “Defining Armed Conflict in International Humanitarian Law,” Law and Justice, Web.
3. Chelimo, para.3.
4. Annyssa Bellal, Gilles Giacca, and Stuart Casey-Maslen, “International Law and Armed Non-state Actors in Afghanistan.” International Review of the Red Cross 93, no. 881 (2011): 49.
5. Bellal et al., 47.
6. Marco Sassoli, “Use and Abuse of the Laws of War in the War on Terrorism,” Law & Inequality 22, no. 1 (2004): 196.
7. Sassoli, 197.
8. Amy Woolf, Nuclear Weapons in Russia: Safety, Security, and Control Issues (Bellevue: Congressional Research Service, 2003), 25.
9. Gary Solis, The Law of Armed Conflict: International Humanitarian Law in War (Cambridge: Cambridge University Press, 2016), 42.
10. Michael Schmitt, Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance (Netherlands: TMC Asser Press, 2011), 46.
11. Rod Thornton, Asymmetric Warfare: Threat and Response in the 21st Century (Cambridge: Polity, 2007), 8.
12. Anthea Roberts and Sandesh Sivakumaran, “Lawmaking by Nonstate Actors: Engaging Armed Groups in the Creation of International Humanitarian Law.” Yale Journal of International Law 37, no. 1 (2012): 108.
13. Thornton, 15.
14. Oliver Dorr and Kirsten Schmalenbach, Vienna Convention on the Law of Treaties: A Commentary (Berlin: Springer Science & Business Media, 2011), 42.
15. Dorr and Schmalenbach, 43.
16. Frits Kalshoven and Liesbeth Zegveld, Constraints on the Waging of War: An Introduction to International Humanitarian Law (Cambridge: Cambridge University Press, 2011), 31.
17. Michael Hoffman, “Terrorists are Unlawful Belligerents, not Unlawful Combatants: A Distinction with Implications for the Future of International Humanitarian Law,” Case Western Reserve Journal of International Law 34, no. 2 (2002): 228.
18. Ibid, 227.
19. Ibid, 228.
20. Ibid, 229.
21. Ibid, 227.
22. Sassoli, 199.
23. Eric Heinze, “The Evolution of International Law in Light of the ‘Global War on Terror”, Review of International Studies 37, no. 3 (2011): 1069.
24. Dinah PoKempner, “The “New” Non-State Actors in International Humanitarian Law,” George Washington International Law Review 38, no. 3 (2006): 553.
25. PoKempner,552.
26. Sassoli, 200.
27. Sassoli, 205.
28. Adam Fenton and David Price, “Breaking ISIS: Indonesia’s Legal Position on the ‘Foreign Terrorist Fighters’ Threat,” Australian Journal of Asian Law 16, no. 1 (2015): 4.
29. Thornton, 17.