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Participation of armed groups in the development of the law applicable to armed conflicts

Published online by Cambridge University Press:  08 June 2012

Sophie Rondeau
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Abstract

The topic of participation of armed groups in the development of legal instruments binding them is particularly important and needs to be addressed urgently. Many scholars and organizations have advocated recently for the participation of armed groups in the development of legal instruments binding them, with a view to ensuring their adhesion to the law. However, practical and legal considerations seem to make this participation extremely difficult in practice. Creative solutions have to be found. After reviewing five main reasons why armed groups should be involved in the advancement of the law governing armed conflicts, this article offers a brief overview of selected means by which armed groups should be engaged in the creation of future norms, as well as in the interpretation and contextualization of existing norms.

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International Review of the Red Cross , Volume 93 , Issue 883: Engaging armed groups , September 2011 , pp. 649 - 672
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Copyright © International Committee of the Red Cross 2012

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References

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7 For an overview of some enforcement mechanisms set up for states to address violations of the law applicable to armed conflicts (through the lens of a potential individual right to reparation), see Sophie Rondeau, ‘Violations du droit international humanitaire et réparation: la place de la victime individuelle’, March 2008, available at: http://www.archipel.uqam.ca/1277/1/M10305.pdf (last visited 18 April 2011). See also more generally Sassòli, Marco, ‘State responsibility for violations of international humanitarian law’, in International Review of the Red Cross, Vol. 84, No. 846, 2002, pp. 401–433Google Scholar; Kalshoven, Frits, ‘State responsibility for warlike acts of the armed forces’, in Constitutional Law Quarterly, Vol. 40, No. 1, 1991, p. 827Google Scholar; Gillard, Emanuela-Chiara, ‘Reparations for violations of international humanitarian law’, in International Review of the Red Cross, Vol. 85, No. 851, 2003, p. 529Google Scholar; Mazzeschi, Riccardo Pissillo, ‘Reparation claims by individuals for state breaches of humanitarian law and human rights: an overview’, in Journal of International and Comparative Law, Vol. 1, 2003, p. 339Google Scholar.

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9 Ibid., para. 37.

10 Ibid., para. 46.

11 Report of the Secretary-General on the Protection of Civilians in Armed Conflict, UN Doc. S/2010/579, 11 November 2010, para. 52.

12 Ibid., para. 3.

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20 Ibid., p. 433.

21 ‘Nothing is lost, nothing is created, all is transformed’ (free translation). Antoine Lavoisier, Traité élémentaire de chimie, 1864 edn (first published 1789), p. 101, available at: http://www.lavoisier.cnrs.fr/ice/ice_page_detail.php?lang=fr&type=text&bdd=lavosier&table=Lavoisier&bookId=89&typeofbookDes=&pageOrder=101&facsimile=off&search=no (last visited 11 April 2011).

22 For general information on the subject, see the International Relations Theory Knowledge Base available at: http://www.irtheory.com/know.htm (last visited 20 April 2011). For the application of different international relations approaches to engagement with armed groups see, Claudia Hofmann and Ulrich Schneckener, ‘Engaging non-state armed actors: options and strategies for engagement’, in this issue.

23 For a study on the ownership of humanitarian norms by armed non-state actors, see Geneva Academy of International Humanitarian Law and Human Rights, ‘Rules of engagement: protecting civilians through dialogue with armed non-state actors’, available at: http://www.adh-geneva.ch/docs/publications/Policy%20studies/Rules-of-Engagement-EN.pdf (last visited 5 January 2012).

24 Geneva Call is a ‘neutral and impartial humanitarian organization dedicated to engaging armed non-state actors towards compliance with the norms of international humanitarian law and human rights law. The organization focuses on non-state actors that operate outside effective state control.’ More information is available at: http://www.genevacall.org/home.htm (last visited 27 April 2011).

25 See UN Doc. S/2010/579, above note 11, para. 54, quoting the Geneva Academy of International Humanitarian Law and Human Rights, ‘Armed non-state actors and international norms: towards a better protection of civilians in armed conflicts: summary of initial research and discussions during an expert workshop in Geneva in March 2010’, September 2010, p. 4, available at: http://www.adh-geneva.ch/docs/reports/armednonstateactors.pdf (last visited 1 May 2011).

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27 See Provost, René, ‘The move to substantive equality in international humanitarian law: rejoinder to Marco Sassòli and Yuval Shany’, in International Review of the Red Cross, Vol. 93, No. 882, June 2011, pp. 437–442Google Scholar.

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29 See UN Doc. S/2010/579, above note 11, para. 54. See also Geneva Academy, above note 25, p. 5.

30 See J. Pictet, above note 28.

31 Ibid.

32 See ICRC, ‘IHL and other legal regimes: jus ad bellum and jus in bello’, 2010, available at: http://www.icrc.org/eng/war-and-law/ihl-other-legal-regmies/jus-in-bello-jus-ad-bellum/overview-jus-ad-bellum-jus-in-bello.htm (last visited 5 January 2012).

33 Maurice, Frédéric, ‘Humanitarian Ambition’, in International Review of the Red Cross, Vol. 32, No. 289, 1992, p. 371CrossRefGoogle Scholar, as quoted in M. Sassòli and A. Bouvier, above note 13, p. 84.

34 For an analysis of the challenges to the traditional doctrine of sources position on the creation of international law by modern positivists and process theorists, see Roberts, Anthea and Sivakumaran, Sandesh, ‘Hybrid sources of law: armed groups and the creation of international humanitarian law’, in Yale Journal of International Law, Vol. 37, 2011Google Scholar, section I.C.

35 See International Court of Justice (ICJ), Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 11 April 1949, p. 178. See also Permanent Court of International Justice, Jurisdiction of the Courts of Danzig, Advisory Opinion, 3 March 1928 (Ser. B), No. 15, p. 17: ‘Legal persons may bear a broad range of rights and obligations under international law’.

36 Statute of the International Court of Justice, 26 June 1945, Art. 38(1).

37 It should be noted that the state-centric approach has been challenged in doctrine. See e.g. Clapham, Andrew, Human Rights Obligations of Non-state Actors, Academy of European Law/European University Institute/Oxford University Press, Oxford, 2006Google Scholar, available at: http://graduateinstitute.ch/faculty/clapham/NSAlecture/HR%20obligations%20of%20non-State%20actors.pdf (last visited 1 May 2011); Robert McCorquodale, ‘The individual and the international legal system’, in Malcolm D. Evans (ed.), International Law, 2nd edn, Oxford University Press, Oxford, 2006, p. 309; McCorquodale, Robert, ‘An inclusive international legal system’, in Leiden Journal of International Law, Vol. 17, 2004, pp. 477–504Google Scholar.

38 A. Roberts and S. Sivakumaran, above note 34, section I.C.

39 This expression is used in A. Roberts and S. Sivakumaran, above note 34, section II.A.2, to describe international bodies created by two or more states and granted authority to make decisions or take actions, such as developing, interpreting, applying, and enforcing international law.

40 M. Sassòli, above note 1, p. 22.

41 A. Roberts and S. Sivakumaran, above note 34, section III. B.

42 M. Sassòli, above note 1, p. 22. See also Jean-Marie Henckaerts, ‘Binding armed opposition groups through humanitarian treaty law and customary law’, in Proceedings of the Bruges Colloquium: Relevance of International Humanitarian Law to Non-state Actors, 25 and 26 October 2002, Vol. 27, Collegium No. 123, Spring 2003, p. 128.

43 Sandoz, Yves, Swinarski, Christophe, and Zimmermann, Bruno (eds), Commentaries to the Additional Protocols of June 8 1977 to the Geneva Conventions of 1949, ICRC, Geneva, 1987Google Scholar, ‘General introduction’, p. xxix, available at: http://www.icrc.org/ihl.nsf/COM/470-750001?OpenDocument (last visited 1 May 2011): ‘All States which were Parties to the Geneva Conventions or Members of the United Nations were invited to attend, in all numbering 155 nations. The number of those participating in the Conference varied from 107 to 124 in the various sessions. In addition, 11 national liberation movements and 51 intergovernmental or non-governmental organizations participated as observers, so that the total number of delegates fluctuated around 700.’

44 See ‘The law of war and Colombia’ (text around note 34) in Human Rights Watch, ‘War without quarter: Colombia and international humanitarian law’, 1998, as quoted in A. Roberts and S. Sivakumaran, above note 34, notes 133 and 134. For El Salvador, see the statement of the FMLN Political and Diplomatic Commission to the effect that they were entitled to detain an ambulance transporting a wounded man at a crossroad, since there was no agreement or pledge between the parties in regard to the evacuation by road of armed forces wounded: Second Report of the United Nations Observer Mission in El Salvador, UN Doc. A/46/658, 15 November 1991, paras. 64–65.

45 A. Roberts and S. Sivakumaran, above note 34, section IV.

46 Jakob Kellenberger, ‘Strengthening legal protection for victims of armed conflicts’, 21 September 2010, available at: http://www.icrc.org/eng/resources/documents/statement/ihl-development-statement-210910.htm (last visited 29 April 2011).

47 As Sassòli noted, it is remarkable that armed groups were completely excluded from the Alabama Process, an informal non-governmental ‘post-modern’ process aimed at action-oriented research, informal discussions with governments, and possible new interpretations of humanitarian law. M. Sassòli, above note 1, p. 24. See also ‘The Alabama Process’, co-organized by the Swiss Department of Foreign Affairs and the Program on Humanitarian Policy and Conflict Research at Harvard University (HPCR), available at: http://ihl.ihlresearch.org/index.cfm?fuseaction=Page.viewPage&pageId=481 (last visited 1 May 2011).

48 See contra Ed Pilkington, ‘The Monitor Group: Gaddafi's PR firm used academics’, in The Guardian, 4 March 2011, available at: http://www.guardian.co.uk/world/2011/mar/04/the-monitor-group-gadaffi-pr (last visited 27 April 2011): ‘Ethical problems arise when the distinction between lobbying and academia becomes blurred’.

49 ‘Resolution 1: strengthening legal protection for victims of armed conflicts’, 31st International Conference of the Red Cross and Red Crescent, Geneva, Switzerland, 28 November–1 December 2011, available at: http://www.icrc.org/eng/resources/documents/resolution/31-international-conference-resolution-1-2011.htm (last visited 5 January 2012).

50 J. Kellenberger, above note 46.

51 Geneva Academy, above note 25, p. 8.

52 Geneva Academy of International Humanitarian Law and Human Rights, ‘Armed non-state actors and international norms: towards a better protection of civilians in armed conflicts. Summary of good practice discussed and elaborated during an expert workshop in October 2010’, February 2011, available at: http://www.adh-geneva.ch/docs/projets/NonStateActors/Armed%20Non-State%20Actors%20and%20International%20Norms_Workshop%20Summary_ENG.pdf (last visited 1 May 2011).

53 Geneva Academy, above note 25.

54 ‘PULO towards the international forum’, 11 March 2010, available at: http://puloinfo.net/Statements.asp?ID=12 (last visited 2 May 2011).

55 Buchanan, Cate (ed.), Viewpoints: Negotiating Disarmament, Vol. 1, Centre for Humanitarian Dialogue, March 2008Google Scholar, available at: http://www.hdcentre.org/publications/reflections-guns-fighters-and-armed-violence-peace-processes (last visited 26 April 2011) and Vol. 2, November 2008, available at: http://www.hdcentre.org/publications/viewpoints-volume-2-negotiating-disarmament (last visited 26 April 2011).

56 See generally F. Bugnion, above note 26.

57 Indeed, the ICRC's commentaries tell us that ‘the provision does not merely offer a convenient possibility, but makes an urgent request, points out a duty’. See J. Pictet, above note 28.

58 For example, the Yemen civil war (1962), the civil war in Nigeria (1967), and the conflict in the former Yugoslavia (1992). Specific special agreements for the establishment of protected areas achieved by the ICRC include Dacca/Dhakka (1971), Nicosia (1974), Jaffna (1990), Dubrovnik and Osjek (1991), discussed in Michel Veuthey, ‘Implementing international humanitarian law: old and new ways’, in Bertrand G. Ramcharan (ed.), Human Rights Protection in the Field, Martinus Nijhoff, Leiden/Boston, 2006, p. 87, available at: http://evenium.com/uploads/contents/100000796002/File/71498//mvimplementingihlramcharan.pdf, p. 11 (last visited 26 April 2011). See also M. Mack, above note 3, pp. 16–18.

59 M. Mack, above note 3, p. 17.

60 Ibid., p. 20.

61 It should be pointed out, however, that the binding character of an international obligation assumed by a unilateral declaration is based on good faith. See ICJ Nuclear Tests (Australia v. France), Judgment, ICJ Reports 1974, p. 268Google Scholar, para. 46: ‘Thus interested States may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected’.

62 Since 1963, the following unilateral declarations have been issued: Declaration of 23 May 1968 in Kampala by the rebel Biafran authorities; Declaration of 16 June 1977 by Joshua Nkomo of the African National Congress and the Zimbabwean African People's Union (ANC-ZAPU); Declaration of 8 September 1977 by Ndabaningi Sithole of the African National Congress (ANC, Zimbabwe); Declaration of 23 September 1977 by Bishop Muzorewa of the United African National Council (UANC); Declaration of 25 July 1980 by the Uniao National para a Independencia Total de Angola (UNITA); Declaration of 28 November 1980 by the African National Congress (ANC, South Africa); Declaration of the South West Africa People's Organization (SWAPO); UNITA (Angola) Declaration of 5 April 1988; Declaration in June 1988 by John Garang (Sudan); Declaration of 6 October 1988 in Geneva by SWAPO; Declaration of the Rwandese Patriotic Front of 22 October 1992. See Ewumbue-Monono, Churchill, ‘Respect for international humanitarian law by armed non-state actors in Africa’, in International Review of the Red Cross, Vol. 88, No. 864, 2006, p. 907CrossRefGoogle Scholar.

63 This expression was recently used the United Nations Secretary-General: see UN Doc. S/2009/277, above note 8, para. 46.

64 ‘On 21 June 1989, the Swiss Federal Department of Foreign Affairs received a letter from the Permanent Observer of Palestine to the United Nations Office at Geneva informing the Swiss Federal Council “that the Executive Committee of the Palestine Liberation Organization, entrusted with the functions of the Government of the State of Palestine by decision of the Palestine National Council, decided, on 4 May 1989, to adhere to the Four Geneva Conventions of 12 August 1949 and the two Protocols additional thereto”. On 13 September 1989, the Swiss Federal Council informed the States that it was not in a position to decide whether the letter constituted an instrument of accession, “due to the uncertainty within the international community as to the existence or non-existence of a State of Palestine”.’ ICRC, ‘International humanitarian law: treaties & documents: Palestine’, available at: http://www.icrc.org/ihl.nsf/Pays?ReadForm&c=PS (last visited 27 April 2011).

65 See Michel Veuthey, ‘Learning from history: accession to the conventions, special agreements, and unilateral declarations’, in Proceedings of the Bruges Colloquium, above note 42, p. 143.

66 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, St. Petersburg, 29 November–11 December 1868, Preamble.

67 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, Art. 21.

68 Ibid., Art. 21(2).

69 Albania, Angola, Australia, Bangladesh, Barbados, China, the Czech Republic, Guinea-Bissau, the Islamic Republic of Iran, Israel, the Democratic Republic of Korea, the Republic of Korea, Kuwait, New Zealand, Pakistan, Portugal, the Russian Federation, Suriname, the United Kingdom, the United States of America, Vietnam, and Yemen all made reservations upon signature or ratification of the Geneva Conventions. See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. I, Federal Political Department, Berne, p. 342, available at: http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=375&ps=P (last visited 26 April 2011).

70 Out of the 167 states that ratified Additional Protocol I, Albania, Angola, Argentina, Australia, Austria, Belgium, Canada, China, Denmark, Egypt, Finland, the Former Yugoslav Republic of Macedonia, France, Germany, Greece, the Holy See, Iceland, Ireland, Italy, Japan, the Republic of Korea, Kuwait, Liechtenstein, Malta, Mauritius, Mongolia, the Netherlands, Oman, Portugal, Qatar, Saudi Arabia, Spain, Sweden, the Syrian Arab Republic, the United Arab Emirates, and the United Kingdom, all made reservations upon signature or ratification. See: http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=470&ps=P (last visited 26 April 2011).

71 On the concept and the impact of immediate reciprocity in IHL, see Provost, René, International Human Rights and Humanitarian Law, Cambridge University Press, Cambridge, 2002, p. 147CrossRefGoogle Scholar.

72 ICJ, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 28 May 1951, ICJ Reports 1951, p. 8.

73 Examples of such norms include those contained in Common Article 3; Part II of the Fourth Geneva Convention (which provides for the general protection of populations against certain consequences of war); sections of AP I regarding the treatment of refugees and stateless persons in the power of a party to the conflict (Art. 73) and the fundamental guarantees of all persons in the power of a party to the conflict (Art. 75); and AP II as a whole: ibid., p. 150.

74 On a related note, it should be added that the clausa si omnes (the participation clause) originally found in the 1899 Convention with Respect to the Laws and Customs of War, The Hague, 29 July 1899 (reprinted in Schindler, Dietrich and Toman, Jiri, The Laws of Armed Conflicts, 4th edn, Martinus Nihjoff, Leiden/Boston, 2004, p. 69Google Scholar), which allowed states parties to ignore the Conventions if one or more parties to the conflict did not ratify them, can no longer be found in IHL treaty law. As Theodore Meron explains, this clause threatened the integrity of the Nuremberg prosecutions, but the tribunal countered that argument by stating that the rules laid out in the 1907 Hague Convention IV were, by 1939, considered customary, making the general-participation clause fall into desuetude. See Meron, Theodore, ‘The humanization of humanitarian law’, in American Journal of International Law, Vol. 94, No. 2, April 2000, pp. 247–248Google Scholar.

75 Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Volume I: Rules, ICRC and Cambridge University Press, Cambridge, 2005, p. xxxviGoogle Scholar. See also Henckaerts, Jean-Marie, ‘International humanitarian law as customary international law’, in Refugee Survey Quarterly, Vol. 21, No. 3, 2002, p. 192Google Scholar: ‘The practice of armed opposition groups does not constitute State practice given that armed opposition groups do not possess international legal personality. Such practice may nevertheless contain evidence of the acceptance of certain rules in non-international armed conflicts. Such practice includes codes of conduct, allegations of violations by governmental armed forces, commitments made to observe certain rules of international humanitarian law, whether unilaterally or toward the ICRC’.

76 Arend, Anthony C., Legal Rules and International Society, Oxford University Press, Oxford, 1999, p. 177Google Scholar.

77 Ibid.

78 International Criminal Tribunal for the Former Yugoslavia (ICTY), The Prosecutor v. Tadić, Case No. IT-94-1-AR72, Decision on the Defense for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 99. See also Zegveld, Liesbeth, Accountability of Armed Opposition Groups in International Law, Cambridge University Press, Cambridge, 2002, p. 22CrossRefGoogle Scholar.

79 Prosecutor v. Tadić, above note 78, para. 108.

80 A. C. Arend, above note 76, pp. 177–178.

81 M. Sassòli, above note 1, pp. 21–22: ‘In my view, customary law is based on the behaviour of the subjects of a rule, in the form of acts and omissions, or in the form of statements, mutual accusations and justifications for their own behaviour. Non-State actors would logically be subject to customary law which they contribute to creating’.

82 R. McCorquodale, ‘An inclusive international legal system’, above note 37, pp. 498–499.

83 A. Roberts and S. Sivakumaran, above note 34, Section IV.B.

84 See generally on the topic, Hui Han Lie, ‘The influence of armed opposition groups on the formation of customary rules of international humanitarian law’, Masters thesis, University of Amsterdam, November 2003, available at: http://www.southsouthnetwork.com/scriptie.doc (last visited 1 May 2011).

85 For a few comments on a potential new lex armatorum, see M. Sassòli, above note 1, p. 23.

86 See Pierre Trudel, ‘La lex electronica’, p. 8, available at: http://www.chairelrwilson.ca/cours/drt3808/Lexelectronicatrudel.pdf (last visited 5 January 2012): ‘Le cyberespace est à la fois construction technique et construction sociale. Le sujet de droit y agit et interagit en respectant des règles, en organisant sa conduite de manière à se conformer à des impératifs techniques et à des exigences sociales. Mais dans le cyberespace, la capacité de contourner les règles ou tout simplement de s'exclure de leur application demeure toujours disponible et paraît plus aisée que pour les activités se déroulant sur le territoire d'un État.’

87 M. Sassòli, above note 1, p. 23.

88 Namely, the over-politicization of the treaty-making process, the practical difficulties and potential criminal implications of reaching out to armed groups considered illegal, the possible enhancement of the status of the armed groups, the inappropriate legitimizing of armed groups, and the downgrading of humanitarian law protections.

89 Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, UN General Assembly, Human Rights Council, UN Doc. A/HRC/17/3, 21 March 2011, available at: http://www.ohchr.org/documents/issues/business/A.HRC.17.31.pdf (last visited 5 January 2012).

90 OECD Guidelines for Multinational Enterprises, Revision 2011, available at: http://www.oecd.org/document/18/0,3746,en_2649_34889_2397532_1_1_1_1,00.html (last visited 5 January 2012).

91 Ibid., Foreword.

92 See Pfanner, Toni, ‘Asymmetrical warfare from the perspective of humanitarian law and humanitarian action’, in International Review of the Red Cross, Vol. 87, No. 857, 2005, pp. 150–151CrossRefGoogle Scholar.

93 See ibid., p. 163, note 37, where the existence of a new American organization, called the Strategic Support Branch, is mentioned. This organization is designed to operate without detection and under the Secretary of Defense's direct control, and deploys small teams of case officers, linguists, interrogators, and technical specialists alongside newly empowered special operations forces. See also Barton Gellmann, ‘The secret unit expands Rumsfeld's domain’, in Washington Post, 23 January 2005, available at: http://www.washingtonpost.com/ac2/wp-dyn/A29414-2005Jan22?language=printer (last visited 1 May 2011); see contra ‘Statement From Pentagon spokesman Lawrence DiRita on intelligence activities of the Defense Department’, US Department of Defense's Release No. 062-0523, 23 January 2005, available at: http://www.au.af.mil/au/awc/awcgate/dod/nr20050123-2000.htm (last visited 5 January 2012), although Pfanner, in January 2005, referred to the same statement, but hosted at another address that is no longer valid, and stated that ‘the creation of a new unit was confirmed in a statement from Pentagon spokesman Lawrence DiRita (on intelligence activities of the Defense Department)’, 23 January 2005.

94 An American example of such a measure could be the prohibition, through the USA Patriot Act (18 U.S.C. §2339B), of material support, which includes ‘training’, ‘expert advice or assistance’, ‘service’, and ‘personnel’, to groups designated as terrorists. See Holder, Attorney General, et al. v. Humanitarian Law Project et al., 561 U.S. 25, 21 June 2010. See also Naz Modirzadeh, Dustin Lewis and Claude Bruderlein, ‘Humanitarian engagement under counter-terrorism: a conflict of norms and the emerging policy landscape’, in this issue. Also, on the problem of institutionalization of ‘terrorist blacklists’ at international and national levels, see Florquin, Nicolas and Warner, Elisabeth Decrey, ‘Engaging non-state armed groups or listing terrorists? Implications for the arms control community’, in Disarmament Forum, Vol. 1, 2008, p. 17Google Scholar, available at: http://www.unidir.org/pdf/articles/pdf-art2708.pdf (last visited 5 January 2012).

95 These are taken from some of the United Nations Secretary-General's recommendations to member states in his Report from 2010, UN Doc. S/2010/579, above note 11.