Non- state actors in international humanitarian law
While talking about non-state actors may be a non-starter in respect of a number of branches of public international law, this is undeniably not so in international humanitarian law (IHL). Admittedly, IHL was historically geared toward regulated warfare between states, and it paid only scant attention to the interests of non-state actors. Yet in the course of the twentieth century, IHL’s protective remit has substantially broadened so as to include the two possible categories of non-state actors finding themselves in the line of fire: those who fight and those who do not fight. Those who do not fight are under normal circumstances civilians. By virtue of the principle of distinction, they cannot, as such, be a legitimate target of an attack, although they can sometimes be considered as ‘collateral damage’ of attacks directed at military objectives.1 Those who do fight, often as a member of an armed (opposition) group can, of course, be the object of an attack, but IHL guarantees that such fighters do not forfeit all their rights when taking up arms. For example, they cannot be summarily executed, they cannot be tortured, they have certain due process rights, etc. Nonetheless, members of non-state armed groups enjoy considerably less protection than members of regular state forces, as is clear from a comparison of the limited number of provisions of Additional Protocol II to the Geneva Conventions (AP II), i.e. the Convention governing noninternational armed conflicts, pitting government forces against insurgents, with the extensive protections granted by the four Geneva Conventions and Additional Protocol I, i.e. the Conventions applicable to international armed conflicts pitting government forces against each other. States typically consider insurgent or rebel groups as illegitimate combatants or ‘terrorists’, who are deprived of any legitimacy.2 Because states view rebel groups as outlaw actors (understandably so, as they directly threaten state interests), they will usually deny that such groups enjoy any legal personality, for fear of legitimating their actions. If this argument is taken at face value, however, this would also mean that non-state armed
groups are not bound by IHL, in particular Common Article 3 of the Geneva Conventions and AP II. Without personality, one cannot possibly have legal obligations. Of course, such groups may be bound by domestic law, which will outlaw, and harshly punish, their actions. However, because this law emanates from the very government against which they are fighting, it is not very likely to deter them.3 Governments should realize that non-state actors will only tend to comply with norms that are imbued with a sufficient measure of legitimacy. IHL, designed internationally, may precisely offer such norms. Since IHL may civilize the conduct of non-state actors in ways that state law cannot, states have an interest in entering into IHL conventions aimed at regulating internal conflicts. Of course, reciprocity demands that states give up their freedom of action vis-à-vis insurgent groups, but if insurgent groups limit their action accordingly, that may be a price worth paying. It is generally accepted, also by the UN Security Council, that non-state armed groups are bound by IHL.4 Nonetheless, statements that such groups are bound by IHL do not solve this major conceptual problem with undesirable practical repercussions: how can insurgent groups be bound by IHL conventions to which they have not signed up? Indeed, these conventions, while also limiting insurgent action, are negotiated by states, and only by states. It is this problem that will be tackled in this chapter: how can we explain the binding character of IHL conventions for non-state armed groups? It is argued that, while in the eyes of insurgent groups international law conventions may compare favorably with domestic law in terms of legitimacy, the absence of consent to be bound on their part continues to detract from the legitimacy of IHL norms. Ideally, mechanisms aimed at securing consent ought to be offered to insurgent groups in order for IHL conventions to become truly binding, and ultimately effective on the ground. After all, pursuant to discursive democracy theory, one can only be subject to the writ of the law, and be expected to comply with the law, if one has participated, however indirectly, in the formation of this law.