Abstract
Does international law matter on the periphery, where potential subjects are marginalized with uncertain legal status and without lawmaking power? Under what conditions would international law matter among the actors on the periphery, to be accepted as law, remain relevant, and eventually be complied with? By adopting an interdisciplinary perspective from international law and international relations, this article assesses how international humanitarian law (ihl) is accepted and adhered to among the non-state armed actors (nsaas). The author argues that international law matters on the periphery when two conditions are met. The first is when incentives of nsaas are compatible with ihl’s goal of restraint. The second is when the interpretation of ihl at the local level is consistent with international law at the global level. This article provides ample examples of nsaas’ words and deeds to illustrate the arguments.
1 Introduction
Does international law matter on the periphery, where potential subjects appear to be marginalized with uncertain legal status and without lawmaking power? Under what conditions would international law matter among the non-state actors, to be accepted as law, remain relevant, and eventually be complied with? In the era where the legitimacy, relevance, and acceptance of international law is in question, examining the ways international law is taken up on the periphery will be important in order to gauge the weight and future course of international law.
My central inquiry lies with the case of non-state armed actors (nsaas). nsaas, in this article, are defined as individuals or groups that pursue their political, social, or economic goals with military means. In common parlance, the category of nsaas often includes groups or individuals of insurgents, rebels, terrorists, or even criminal gangs. 1 Granted, not all nsaas are within the ambit of international humanitarian law (ihl). 2 Starting with the question of whether the conflict constitutes non-international armed conflicts, legal scholars debate the requirements for belligerency and the standards of ‘taking hostilities in combat,’ as well as whether the armed organization had a sufficient command and control structure or effective territorial control. 3 The discussions and related debates on legal requirements for individuals or groups are not taken lightly in this article. Rather, instead of focusing on the determination of whether each nsaa is a legal subject or not, the approach of this article is to assume that all nsaas are, to a varying extent, under the umbrella of ihl, 4 some within the legal boundaries of treaties, or others at the customary level. This approach is adopted because the main goal of this paper is to analyze the relationship between nsaas and ihl in general, recognizing the heterogeneity within the set of nsaas. The analytical exercise in this article will therefore be different from the purely legal analysis of whether a particular case of nsaa fits the criteria for legal personality or whether ihl is directly applicable to a certain group or individual in question.
Having defined the nsaas, I come back to the central question of this article. Residing on the “periphery,” not at the center of international law, nsaas do not enjoy the same rights and responsibilities as states do in terms of international law. As well, nsaas are usually marginalized in international law-making. 5 Under what conditions would international law permeate nsaas? More generally, when would international law matter on the periphery?
I present the patterns for the acceptance and relevance of ihl in the case of nsaas by advancing a theoretical argument on two conditions: 1) incentive compatibility and 2) consistency in interpretation. When nsaas have incentives to become accustomed to and comply with ihl, and when nsaas have congruent interpretations at the local level with global norms, we are likely to see the signs of ihl acceptance on the periphery. Without these two conditions, wherein incentive compatibility condition fails, and/or when local norms are too disparate from global understandings of rules, we are likely to observe irrelevance, non-acceptance, or rejection of ihl among nsaas. At times, the two conditions of incentive compatibility and congruent interpretation can reinforce each other: having local interpretation consistent with global rules can strengthen nsaas’ incentives to follow the law. In turn, incentive compatible environments can motivate nsaas to have local interpretation that matches global understanding of international law.
The ‘reach’ of international law with respect to nsaas has been broadened over time during the course of the 20th and 21st centuries. Traditionally, international law regulated the conduct of states in the international system. With the rise of individual actors, 6 international law now covers a variety of actors, including nsaas. 7 The Geneva Conventions’ Common Article 3, as well as the Additional Protocols, expanded the reach of international law with respect to nsaas’ obligations. 8 Human rights treaties, such as the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (opac), also concern non-state actors’ restraints in behavior during wartime. The signing of the Rome Statute, the establishment of the International Criminal Court, and its operation with the accumulation of case law, has demonstrated that international law has reached the nsaas in an unprecedented way.
At this historical juncture, it is important to assess the permeation of ihl on the part of nsaas for two major reasons. One is for human security reasons. Many nsaas are perpetrators of ihl in the course of their use of violence. Understanding how nsaas react to ihl will help us devise proper international legal and policy responses that are directly related to the fate of many civilians around the world. Second, as the number of actors in the international system proliferates, knowing how international law is accepted by end-users will allow us gauge the relevance and acceptance of ihl more generally. Many scholars agree that the legitimacy of international law is at risk in the contemporary era with the rise of populism and backlash against liberal order. 9 Against the backdrop, the inquiry on nsaa’s relationship with ihl will aid our understanding of how international law operates on the periphery where the law’s presence is not strong and often nebulous.
This article will analyze theoretical conditions where ihl might be accepted and remain relevant. It also illustrates the two conditions with the examples of nsaas’ words and deeds. nsaas sometimes invoke international law and exhibit behaviors consistent with what is prescribed by international humanitarian legal principles. Other times, nsaas outright reject ihl in terms of words or blatantly flaunt ihl in terms of deeds. The heterogeneity and different types of non-state armed groups will account for the mosaic patterns of relevance and acceptance of ihl.
The remainder of this article proceeds as follows: Section 2 & 3 explicate my argument for the dual conditions for international law’s acceptance on the periphery. Subsections therein present examples to illustrate the arguments by examining nsaas’ words and deeds. Section 4 concludes with implications for ihl and policy.
2 Incentive Compatibility
International law matters on the periphery when incentives are compatible between subjects and the rules. When the goals of ihl and the goals of nsaas match, we are likely to see the relevance and acceptance of ihl. I call the zone of agreement ‘incentive compatibility’ condition. When incentives are compatible – that is, when the actor’s interests and motivations overlap, nsaas are likely to recognize, acknowledge, and apply international law. Incentive compatibility is a necessary but insufficient condition for the full acceptance of ihl by nsaas. Having incentive compatibility on the part of nsaas will not sufficiently guarantee compliance because there might be other factors that could occur leading up to the compliance stage. For example, even if the nsaa leadership might set the internal code of conduct consistent with ihl, rank and file soldiers might violate the rules in the fog of war.
At first blush, the match between ihl goals and nsaas’ objectives appear difficult to attain. The goal of ihl is restraints in violence to reduce human suffering. Political and military imperatives of nsaas are, more often than not, in conflict with the central goal of ihl of restraining wartime behavior. The purpose of nsaas is often to inflict pain in order to extract concessions from the opposing government or to attain their social, political, or economic goals. The oscillating motivations of nsaas between violence and restraint imply that the goals of ihl and the objectives of nsaas might be irreconcilable. 10
Despite the potential irreconcilability, I specify three situations where incentive compatibility might exist. The first is when nsaas express their intent to abide by ihl as a signal to conform to ihl, mainly through the interaction with international humanitarian actors. The second is when certain types of nsaas, such as secessionist groups, exhibit the motivation to gain international legitimacy in complying with ihl. The third is when nsaas’ life cycle allows their incentives to be aligned with ihl goals. The three conditions will serve as the specific examples where incentives of nsaas merge with ihl goals of restraints.
2.1 Humanitarian Interactions and Production of Soft Law Documents
Interactions with international humanitarian actors can increase the nsaas’ incentives to accept international law. Some nsaas have been increasingly committing themselves to international law, through peace agreements, unilateral declarations, or agreements with international organizations. International humanitarian actors are often part of the production of these soft commitments. 11 In the case of the anti-personnel mines issue, for instance, the Geneva Call has been active in collaboration with other international coalitions, to promote the Deed of Commitments for Adherence to a Total Ban on Anti-Personnel Mines and for Cooperation in Mine Action (the ‘Deeds’ hereafter). To date, about 50 insurgent organizations have committed to the Deeds, and this number is approximately half of those that were contacted by the Geneva Call. 12 The figure suggests that not all nsaas are engaged, and among the ones that were engaged, only a fraction are willing to engage international law. Recent research also shows empirical evidence that the commitment to the Deeds actually helped some insurgent groups eventually to change their behaviors to the direction of more restraints. 13 In the case of the ban on child soldiering, the United Nations Special Office of Children and Armed Conflict has led the effort to negotiate action plans with nsaas, often in collaboration with the United Nations Department of Peacekeeping Operations and the United Nations Development Programme. The action plans thus far covers 20 groups of nsaas. 14
The examination of soft law documents produced by nsaas give us a more concrete sense of how the soft law development is progressing. The Geneva Call’s Theirwords archive curates these documents of international humanitarian commitment by nsaas. 15 The database features more than 600 documents by about 60 non-state armed groups that are unilaterally or bilaterally concluded with respect to international law, between the period of 1974 and 2011. The analysis of the database shows an increasing trend in the commitment of international law by nsaas. Around 1990, the total commitment documents ranged around 10. By 2000, the total commitment documents per year ranged around 30. If we include the expressions in other mediums, such as social media, we are likely to observe more international law related comments from nsaas. 16
Figure 1 shows the snapshots of specific times to highlight the evolution of expressions in the Theirwords archive, in 1981 and 2014 respectively. The word cloud of 1981 is based on two documents: (1) swapo Declaration to the International Committee of the Red Cross from the South West Africa People’s Organization (swapo), a national liberation movement in Namibia, and (2) Political Agreement between the fmln and Youth for Military Army of New Constitution by the Farabundo Martí National Liberation Front (fmln) in El Salvador. In 2014, we see the words of the National Coalition of Syrian Revolutionary and Opposition Forces, from the document titled Declaration of Commitment on Compliance with ihl and the Facilitation of Humanitarian Assistance.
In 1981, at the height of national liberation movements and Marxist rebels, we see words like ‘revolutionaries,’ ‘people’ etc. in the words of swapo and fmln. In 2014, we see words like ‘humanitarian,’ ‘protect,’ ‘refrain’ etc., as in the words of the National Coalition of Syrian Revolutionary and Opposition Forces. These word clouds are evidence, at least in part, of normative shifts on the part of rebel groups. This shift may well be due to the changing nature of rebellions, but that in and of itself is important in noting that insurgent groups engage in international ‘law talk.’
Comparing Non-State Armed Actors’ Words-in-Documents Overtime, 1981 and 2014
Citation: Journal of International Humanitarian Legal Studies 11, 1 (2020) ; 10.1163/18781527-bja10016
Comparing Non-State Armed Actors’ Words-in-Documents Overtime, 1981 and 2014
Citation: Journal of International Humanitarian Legal Studies 11, 1 (2020) ; 10.1163/18781527-bja10016
Comparing Non-State Armed Actors’ Words-in-Documents Overtime, 1981 and 2014
Citation: Journal of International Humanitarian Legal Studies 11, 1 (2020) ; 10.1163/18781527-bja10016
The examples above related to humanitarian engagement, together with the brief survey of some soft law documents produced by nsaas, illustrate the importance of incentive compatibility condition in bringing about nsaas’ commitments to ihl.
2.2 Diverse Interests within nsaas
Some sets of nsaas are more likely to align their interests with the goal of ihl, relative to others. The goals, sponsorship, and ideology appear to matter. Depending on their goals, some nsaas are more likely to be acceptant of ihl than others. When secessionist groups try to achieve the goal of statehood, for example, they are more likely to partake in international legal argumentation and stay in the realm of international law. The Polisario of the Western Sahara, a self-governing territory recognized by the international community, provides a case in point. Polisario filed a case at the Court of Justice of the European Union (cjeu) over the EU-Morocco Fisheries Agreement. 17 The case was advanced by the lawyers from the Independent Diplomat 18 and the cjeu ruling upheld the self-determination principle advocated by the Polisario. 19 Recent research also shows that secessionist nsaas are more likely to care about international law in their pursuit of sovereignty on the global stage, with a trickledown effect regarding how they treat civilians on the ground when exercising violence. 20
Ideology also conditions the nsaa’s relationship with ihl. Jihadist armed actors often denounce international law as ‘occupiers’ law’ or the invention of the ‘West.’ Marxist armed actors often refer to international law as ‘imperialist rule.’ Seen in this light, the ideology creates belief systems that could diametrically oppose international law. When ideological differences make it difficult for the incentive-compatibility condition to be satisfied, we are likely to observe nsaas rejecting the very structure and authority of international law. This wholesale rejection is akin to the problem of ‘persistent objectors’ that would challenge the law and order created by the ‘Other.’
Sponsorship also influences how acceptant nsaas are to the rules of ihl. Recent international relations scholarship shows that nsaas with democratic foreign sponsorship are less likely to abuse civilians, compared to those that rely on other types of external support. 21 The logic and evidence holds that democracies replete with civil societies could operate as a check on the support for nsaas in the circumstances of atrocities, whereas autocracies might care less about civilian abuse by nsaas they support. One example is the behavior of the Revolutionary United Front in Sierra Leone, which committed atrocities under the support of Charles Taylor from Liberia. The disregard for civilian life might well have been influenced by the support the group received.
2.3 Timing
To some nsaas, accepting ihl becomes incentive compatible at some point in their life cycle. Timing therefore can influence incentive compatibility condition. When, for example, nsaas are negotiating for peace talks, incentives for international appeal increases. As peace agreements often entail ihl provisions, 22 nsaas have the opportunity to participate in the international law, which in turn could contribute to the broader acceptance of ihl.
The statements by Fuerzas Armadas Revolucionarias de Colombia (farc) provide an example of changing rhetoric related to ihl over time during a life-cycle of one nsaa. 23 In 2001, Gabriel Angel, a farc commander, criticized ihl as a tool to expand US hegemony, 24 pointing out exclusion of ‘Peoples’ in the law-making process.
…Trying to tie their conduct under the rules of that so called ihl, that more than representing the ethical aspirations of all of mankind, really translate the interests of the dominating class of the dominating states in the world, because they have never been enacted democratically by Peoples in struggles, but by the conclaves that were victorious in international wars. To apply it, according to the interested parties, to nations that must bend backward, even if they themselves attack each time they deem necessary with impunity.
Fast forward to 2016, the former farc leader Iván Márquez made an announcement that is rather accepting of the ihl framework in the wake of the historical peace agreement in Colombia.
Without any desire to revive the controversy, want it or not, because of the simple fact that our recent peace treaty is conceived within the spirit and letter of ihl, it constitutes a Special Agreement with everything that such an agreement entails domestically and in the international arena. International Protocols are not ratified to be ignored. 25
The farc’s changing rhetoric with regard to ihl is an indication that ihl is able to penetrate the nsaa’s life-cycle to a certain extent when the time is ripe. A critical view might hold that it is only when nsaas are militarily weak that they commit to ihl. Not all nsaas, however, are able or willing to commit to ihl. The fact that only some fraction of nsaas are interested in ihl suggests the possibility for humanitarian actors to utilize the particular timing and seize the opportunity to encourage the nsaa’s commitment to international law, bring them into the legal realm, and later help them walk toward ihl compliance. This observation holds especially when the commitment problems of going back to unrestrained violence plague many armed conflicts around the world. 26
Recently, the Islamic Emirate of Afghanistan (iea), known also as the Taliban, issued a statement related to ihl values in a speech of its delegation at a conference in 2019. The timing is such that the Taliban’s negotiation with the United States was in the offing. The below statement cannot be considered binding, but the example is brought in to illustrate that nsaas may be interested in engaging law and associated values at some point in their life-cycle.
Islamic Emirate of Afghanistan has taken the following practical measures for the prevention of civilian casualties:
- 1. In order to prevent civilian casualties, Mujahidin are provided with guidelines by scholars on regular basis and independent seminars are held in this regard.
- 2. Delegations pay visit to Mujahidin circles from time to time in order to investigate incidents of civilian casualties and prosecute the perpetrators.
It must also be said that for the sake of the country and prosperous life of our people, the Islamic Emirate of Afghanistan considers building and maintaining of places of public utility as a dire need. It considers bridges, tunnels, dams, electric power stations, electric supply centers, mineral extraction and oil refining centers and its equipments, educational institutions, Madrasas, mosques, schools, universities, health centers, clinics, hospitals, and other public utility places as national asset and public property of the Afghan nation and considers their safety its responsibility. We consider religious and modern education necessary for the success of all Afghans and Afghan society. 27
The statement details some efforts on the part of the iea to ensure the protection of civilians. Although the remarks do not issue direct reference to ihl, it is at least consistent with the ihl values of civilian protection. In the same speech, the iea delegation also highlighted guaranteeing security to humanitarian assistance as well as women’s rights. It is interesting to note that in the same website, ‘Voice of Jihad’, where the above quote originated, several announcements were highlighted that iea soldiers killed the ‘puppets’ of government, extolling its victories and disparaging government behaviors. No doubt that these announcements can be discounted as public relations measures on the part of Taliban. However, the main point here is that the recognition of values consistent with international legal principles could occur at some point of the nsaa’s life-cycle.
2.4 Incentive Compatibility Condition: Summing Up
The evidence and argument provided above upset the simple assumption that all nsaas disregard and undermine ihl. The discussion on incentive compatibility condition yields some useful pointers of humanitarian action. It specifically suggests several factors that could prime humanitarian engagement for the purpose of promoting restraints in war. Certain nsaas’ characteristics (e.g. armed actors with secessionist goals) indicate that some are more willing to engage international law than others, suggesting a more open humanitarian window with those particular actors. Timing also matters, as there are some phases wherein nsaas could be more fruitfully engaged than other time frames. The period of peace talks is one high point that gives the window of opportunity with regard to humanitarian goals. Humanitarian engagement is also the factor that can potentially create incentive compatibility, in an effort to bring nsaas into the realm of ihl.
3 Consistency in Interpretation
Incentive compatibility will be important for international law to matter on the periphery, as argued in the previous section. However, incentive compatibility might not be enough for international law to take roots in local settings. In this section, I propose the second condition and argue that international law matters on the periphery when consistency in interpretation exists. The congruent match of interpretation at the global and local level is going to be needed if international law were to remain relevant at local levels. If local interpretation of ihl challenges global interpretation in fundamental ways, and sometimes in an irreconcilable fashion, international law might lose its touch among nsaas. With diverse decentralized interpretative practices, the incongruence between global and local levels can be jarring, ultimately leading to the erosion of ihl acceptance on the periphery among nsaas. Consistency of interpretation between local and global actors is therefore another necessary condition for the sustainment of ihl acceptance and relevance among nsaas, along with the incentive-compatibility condition outlined in the previous section.
Differences in interpretations can arise because of the differences in social, historical, or religious contexts across societies. 28 Local interpretation of ihl may be in conflict with global interpretations, for example, with respect to the definition of what is a ‘civilian’ in the civilian protection context (as discussed in section 3.1 in more detail), or with respect to the definition of what is a ‘child’ in the child soldiering context (as discussed in section 3.2 in more detail).
The differences in interpretations can also arise when actors deliberately want to interpret international law to play up their political interests. Take the example of a tweet by the National Transitional Council (ntc) during the U.S./nato intervention in Libya. ‘In defiance of international law, Colonel Gaddafi’s authorities committed the most serious crimes possible against the Libyan people … #Libya’. 29 This process of disseminating nsaa’s own interpretations on social media is becoming quite frequent. The problem here is that some nsaas act as if they are the authority to determine legality when, in fact, they may not be. On the one hand, this development is encouraging, since nsaas strive to invoke international law rather than rejecting it wholesale. However, when international law is used instrumentally for political purposes, there is a risk that law can be interpreted rather arbitrarily without proper authority.
Differences in interpretations can also stem from legal uncertainty inherent in ihl. Recent research shows that even humanitarian actors do not have a complete understanding of ihl. 30 We cannot expect nsaas to have proper knowledge of the law either. nsaas usually learn ihl from state army experience especially if the nsaa leadership comes from a state-army background. 31 nsaas might also learn ihl via interaction with humanitarian actors. 32 The study of rebel documents, social media, and reported narratives show that only some, not all, nsaas are aware and accept international law as law governing their conduct. Uncertainty in ihl might create misunderstanding, misinterpretation, politicization of international law, or even silence.
Examples of divergence and convergence of ihl and local nsaa interpretations can be found in words and deeds of non-state armed groups – in their definitions of core legal terms (section 3.1), or when nsaas privilege local norms over global norms (section 3.2). The following examples illustrate where potential interpretative mismatches between ihl and nsaas exist.
3.1 Differing Definitions
ihl governs the conduct of warring parties, but often the logic of military power and victory prevails. This is also the case for nsaas that often interpret the rules to their advantage. Take the example of the Taliban’s internal code of conduct, Layeha. 33 Throughout the text, ‘infidels’ are at the center of the dividing line between legitimate target and illegitimate target. The injection of religious commitment is certainly different from western conception of what civilians are. 34 In Section 4, ‘concerning those who provide logistical support or [carry out] construction for the enemy’ as part of the translated text of the 2010 version of Layeha, the Taliban code of conduct instructs:
24. Drivers who transport supplies for the infidels – during that transportation and if the mujahedin are well-informed that they are transporting [supplies] for the infidels or their enslaved administration – shall be killed and their vehicles burned… 35
According to the principle of distinction between combatants and civilians under ihl, people who do not directly take part in hostilities are considered civilians. The above text in the 2010 version of the Layeha is against this notion. Whether driving an enemy’s car and providing logistical support is a ‘direct participation in hostilities’ is debatable. 36 It could be reasonably held that providing logistical support is indirect, rather than direct, participation in hostilities. 37 But the 2010 Taliban code does not leave any benefit of the doubt in terms of treating the said driver.
Previously, the code was different. In the 2009 version of Layeha, the related part of the text read as follows:
20. If a driver is arrested while he is transporting supplies to the infidels, the provincial official shall decide whether to punish, exchange or release him…” (Section 4. Concerning those who provide logistical support or [carry out] construction for the enemy)
Now, the driver in question has a chance to be tried by the provincial official, rather than being killed immediately. 38 This change from the 2009 to the 2010 text might well have been the reaction to the U.S.’ renewed military commitments and ‘Afghan surge’ of 2009. Internal codes of conduct are often used to discipline soldiers, and the change can be interpreted to pose a stronger reaction to the US military moves. What the comparison of the 2009 and 2010 Layeha illustrates is the arbitrary interpretation of ihl by a nsaa depending on the local political and military conditions nsaas face. This also illustrates the fragility of ihl interpretations in local settings.
The Taliban still disputes the central concepts of civilians in a discursive way. In the recent response to the UN report on civilian protection, the Taliban disputed how the United Nations Assistance Mission in Afghanistan (unama) and the U.S. and Afghanistan governments were applying different shifting standards of defining civilians. This unreconciled interpretative difference portends conflictual relationships between nsaas and ihl in the future as well.
On several occasions, unama counted the American and Kabul administration related armed forces as a civilian while not wearing military uniform and some others, while they do not distinguish between civilian and non-civilian Mujahideen. All those Taliban who are working in administration, education, health, court, reconstruction and other civilian sectors, are counted Taliban and their killings are not counted as civilian casualties. American and Kabul administration usually assume that all civilians that have been remained under control of Islamic Emirate Mujahideen are a legitimate target. Similarly, Mujahideen strictly limits its operations to military objectives while unama criticizes them for using ieds that ieds cannot distinguish targets. While on the other side, they shut their eyes on American and Kabul administration’s airstrikes that do not distinguish civilian and non-civilian and make civilian casualties inevitable. 39
3.2 Local Interpretations
The definition of what ‘child’ is in the context of child soldiering provides another example of the disparity between local and global interpretations of ihl. International law defines a child as up to the age of 18 in the opac, which has been ratified by 167 of 197 UN member states as of 2018. However, the Additional Protocols to the Geneva Conventions (1977) and the Rome Statute (1998) defines a child as up to the age of 15. 40
Eid Kabalu, the spokesman for the Moro Islamic Liberation Front (milf) in the Philippines’ Mindanao region, noted the cultural differences by mentioning that the local Islamic law considers boys over 13 to be adults.
“We adhere to the standards set by the UN,” Kabalu told irin. “While there is no forced conscription among our ranks, there are certain definitions that are different from [the western norms]. These children identified so far by unicef are not really fighting on the frontlines, but are helping in milf communities. It is an obligation for anyone born into the struggle to help achieve our goal of a Muslim homeland. 41
These kinds of local interpretations are sometimes at odds with those at the global level. Inconsistent or incompatible interpretations certainly become obstacles in the implementation of ihl. The law itself is still considered relevant among nsaas like the milf, but the specific interpretation of what the law means in practice is different. 42 Differing interpretations might be hindrance to the acceptance of ihl, which does not have easy resolutions, partly because the cultural notions and practices are historically rooted and socially embedded.
3.3 Consistency in Interpretation: Summing Up
Establishing interpretative consistency in international law is an evolving process. The process of nsaas participating in ihl interpretation is part of the ‘work of international law’ 43 that encourages the contestation and debates as the central function of international law. In the traditional view of international law and law-making, nsaas do not have a role in making or interpreting international laws. However, how nsaas interpret or utilize law for their purposes will be critical in determining the relevance and acceptance of ihl. 44
Small solutions might have big impacts in the face of diverging interpretations of ihl. Islamist thinking is not directly orthogonal to ihl 45 and humanitarian practitioners try to understand where some extremists or ideological nsaas come from. The appropriate persuasion method might not necessarily be ‘talking the law’ but finding commonalities while emphasizing consistency with the law, rather than imposing internalization. 46 When common values, such as the value of civilian life, are emphasized rather than invoking the Additional Protocol ii or the Common Article 3, humanitarians might have a better chance to communicate effectively for improved discussions for civilian protection. This kind of starting-small persuasion or framing might be one solution to breaking the impasse of seemingly incompatible interpretations of international law.
4 Conclusion
This essay delved into the question of ihl mattering on the periphery among nsaas. It proposed two theoretical conditions about when ihl would be relevant to and acceptant by nsaas, with corresponding and illustrating examples. I have argued that ihl will remain acceptant among nsaas when the willingness of nsaas meet the goal of restrained violence and when ihl is interpreted as such among nsaas. The incentive compatibility and consistency in interpretations will condition how nsaas accept ihl on the periphery of international law.
When the two conditions fail, non-compliant behaviors can result. Blatant and flagrant violations of international law occur when nsaas’ incentives and interpretations are not matched. Many such examples exist. The destruction of cultural property by the Islamic State in Syria was motivated by incentive to loot stemming from obvious disregard of ihl in their pursuit of the Islamic Caliphate. 47 Hostage-taking and sexual violence by Boko Haram in Nigeria, when the group imposed Sharia law on civilians, is another example where the armed actors did not have an incentive to accept ihl. 48 Approximately 50 non-state armed parties are still on the list of shame for recruiting and using children in armed conflict, the majority of which comes from the failure of incentive-compatibility condition and/or the problem of local interpretations. 49
The picture we gain with respect to nsaa’s acceptance of ihl is more like a mosaic rather than a well-drawn painting. With patchworks of incentives and interpretations, the discussion portends the importance of understanding the diversity of nsaas and the mode, manner, and circumstances under which they acquire awareness or knowledge of ihl and implement internal rules consistent with ihl. For sure, ihl will continue to have a role in increasing the restraints in times of warfare and contribute to the humanity of war as a frame of law and focal point of action. Nevertheless, we must also recognize the limits to how and what extent international law can operate in local settings as illustrated for the case of nsaas. Recognizing the limitations and possibilities will inform our judgment as to how we want to promote ihl in the case of nsaas. 50
I now turn to the future. General decay in the support for international law on the global level could also potentially impact the regard or disregard of ihl by nsaas. As repression grows with the rise of strongmen, the values of international law and order will be eroded at the national level. As a result, the legitimacy and persuasive power of ihl could weaken among non-state armed groups as well. The incentive of nsaas to respect ihl might be reduced if national leaders show blatant disregard of international law in general. Also, with the proliferation of organized crime groups and other violent actors without central organization, some of whom are outside of the direct reach of international law except the customary law, determining how and in what manner ihl can have a hold on the periphery will be an important task for scholars and practitioners focused on humanity in war and conflict.
Acknowledgement/Disclaimer
This project was supported by the Alexander von Humboldt foundation during the author’s research stay at the Free University in Berlin, Germany. The previous version of the paper is part of the working paper series at the Berlin-Potsdam kfg (Kolleg-Forschergruppe) “The International Rule of Law – Rise or Decline?” The author thanks to Professor Heike Krieger, Professor Georg Nolte, Professor Andreas Zimmermann, Professor Keun-Gwan Lee, and the participants at the kfg workshop. Soren Jordan provided instrumental research assistance in text analysis.
Declaration of Any Competing Interests
The author declares no potential institutional interests in submitting this article. The author is currently serving on the advisory board of the Geneva Call, the Geneva-based non-government organization that conducts humanitarian work. The author’s advisory role is only limited to the scholarly projects of the Geneva Call and does not involve any monetary compensation.
Given the definition, this article will exclude the discussion on lone-wolf terrorists and some terrorists that do not have political agenda. Here, political agenda includes, for example, center aims to topple the government or secessionist aims to have autonomous regions.
For legal personality of nsaas, see the following non-exhaustive list: Tilman Rodenhäuser, ‘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’ (2018) 19 Yearbook of International Humanitarian Law 3; Katharine Fortin, Accountability of Non-State Armed Groups (Oxford University Press 2017); Sandesh Sivakumaran, The Law of Non-International Armed Conflict (Oxford University Press 2012); Annyssa Bellal, Gilles Giacca, and Stuart Casey-Maslen, ‘International Law and Armed Non-State Actors in Afghanistan’ (2011) 93(881) International Review of the Red Cross 47; Janne Elisabeth Nijman, ‘Non-state Actors and the International Rule of Law: Revisiting the “Realist Theory” of International Legal Personality’ in Math Noortmann and Cedric Ryngaert (eds), Non-state Actor Dynamics in International Law: from Law-takers to Law-makers (Ashgate 2010).
This is evinced by Prosecutor v Dusko Tadić (Appeal Judgment) IT-94-1-A (15 July 1999).
This comes from the observation that the empirical boundaries of categories among insurgents, terrorists and criminal gangs are often blurry. According to the study of civil wars and terrorism in the study of international relations, there is substantial overlap between insurgents and terrorists. See, for example, Jessica Stanton, ‘Terrorism in the Context of Civil War’ (2013) 75(4) Journal of Politics 1009. Empirical research also shows that there is substantial overlap between terrorist groups and criminal gangs. See, for example, James Piazza and Scott Piazza, ‘Crime Pays: Terrorist Group Engagement in Crime and Survival’ (2017) Terrorism and Political Violence 1. For the legal framework involving criminal gangs and where ihl might apply to those groups, see Robert Murragh and John Sullivan, ‘The Coming Crime Wars’ Foreign Policy (21 September 2018) <foreignpolicy.com/2018/09/21/the-coming-crime-wars>.
For the recent review of nsaa’s legal obligations as well as their political issues in humanitarian law, see Heike Krieger, ‘International Law and Governance by Armed Groups: Caught in the Legitimacy Trap?’ (2018) 12(4) Journal of Intervention and Statebuilding 563, 570.
Andrew Clapham, Human Rights Obligations of Non-State Actors (Oxford University Press 2006).
In the field of human rights, for example, individuals now have rights to file disputes under international mechanisms.
Many debates remain on the nsaas’ legal obligations under the laws of war. See for instance Gabriella Blum ‘On a Differential Law of War’ (2010) 52(1) Harvard International Law Journal 163.
For instance, see Heike Krieger, ‘Populist Governments and International Law’ (2019) 30(3) European Journal of International Law 1009. Some are concerned liberal internationalism losing touch and social purpose. See John Ikenberry, ‘The End of Liberal International Order’ (2018) 94(1) International Affairs 7.
As embodied in the intense discussion on the balance between military necessity and humanity in war.
Anthea Roberts and Sandesh Sivakumaran, ‘Lawmaking by Nonstate Actors: Engaging Armed Groups in the Creation of International Humanitarian Law’ (2012) 37(1) Yale Journal of International Law 107.
Tanisha Fazal, and Margarita Konaev, ‘Homelands versus Minelands: Why do Armed Groups Commit to the Laws of War?’ (2019) 4(2) Journal of Global Security Studies 149.
Kristian Skrede Gleditsch, Simon Hug, Livia Schubiger and Julian Wucherpfennig, ‘International Conventions and Non-State Actors: Selection, Signaling and Reputation Effects’ (2018) 62(2) Journal of Conflict Resolution 346.
The full list of groups is available at United Nations Office of the Special Representative of the Secretary-General for Children and Armed Conflict, ‘Action Plans’ <childrenandarmedconflict.un.org/tools-for-action/action-plans> accessed 18 April 2020.
Directory of Armed Non-State Actor Humanitarian Commitments <theirwords.org> accessed 15 March 2020.
See an example in the case of National Transitional Council of Libya, as cited in Eleonora Mattiacci, ‘How Twitter and Other Social Media Can Draw the US into Foreign Interventions’ (The Conversation, 3 April 2019) <theconversation.com/how-twitter-and-other-social-media-can-draw-the-us-into-foreign-interventions-105539>.
Case C-104/16 P Council of the European Union v Front populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario) EU:C:2016:973 (21 December 2016).
Independent Diplomat, ‘Independent Diplomat Ten Years’ (2014) 14–15 <independentdiplomat.org/wp-content/uploads/2015/02/ID-Report-2014.pdf>.
Jed Odermatt, ‘Council of the European Union v. Front Populaire: International Decisions’ (2017) 111(3) American Journal of International Law 731.
Jessica Stanton, Violence and Restraint in Civil War: Civilian Targeting in the Shadow of International Law (Cambridge University Press 2017); Tanisha Fazal, Wars of Law: Unintended Consequences in the Regulation of Armed Conflict (Cornell University Press 2018).
Idean Salehyan, David Siroky and Reed Wood, ‘External Rebel Sponsorship and Civilian Abuse: A Principal-Agent Analysis of Wartime Atrocities’ (2014) 68(3) International Organization 633.
As embodied in the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law between the Government of the Republic of the Philippines and the National Democratic Front of the Philippines (signed 16 March 1998) <www.peaceagreements.org/viewmasterdocument/335>. See also 24/11/2016.
Final Agreement to End the Armed Conflict and Build a Stable and Lasting Peace, Government of the Republic of Colombia and Revolutionary Armed Forces of Colombia (signed 24 November 2016) <www.peaceagreements.org/viewmasterdocument/1845>.
I thank Maria Abadia for translations of farc documents from Spanish to English.
Gabriel Angel, ‘Is the possibility to triumph so remote?’ ( farc-EP, 2 July 2001) <www.farc-ep.co/opinion/gabriel-angel/es-tan-remota-la-posibilidad-del-triunfo.html>.
Iván Márquez, ‘Intervention by Iván Márquez at receiving the National Peace Prize’ ( farc-EP, 01 December 2016) <www.farc-ep.co/blogs/intervencion-de-ivan-marquez-al-recibir-el-premio-nacional-de-paz.html>.
See the characterization of the commitment problem in Barbara Walter, ‘The Critical Barrier to Civil War Settlement’ (1997) 51(3) International Organization 335. Also see the potential solutions to the problem embedded in peace agreements in Michaela Mattes and Burcu Savun, ‘Fostering Peace after Civil War: Commitment Problems and Agreement Design’ (2009) 53(3) International Studies Quarterly 737.
Islamic Emirate of Afghanistan, Speech Delivered at the Moscow Conference (5 February 2019), reproduced in Bill Roggio, ‘At Moscow conference, Taliban Refers to itself as the “Islamic Emirate” 61 Times’ (Long War Journal, 9 November 2018) <www.longwarjournal.org/archives/2018/11/at-moscow-conference-taliban-refers-to-itself-as-the-islamic-emirate-61-times.php>.
For the illustration and examples of nsaas’ interpretation of ihl, see Ashley Jackson, ‘In Their Words: Perceptions of Armed Non-state Actors on Humanitarian Action’ (Geneva Call, May 2016) <www.genevacall.org/wp-content/uploads/2019/05/WHS_Report_2016_web.pdf>.
ntc Media (@ntc_of_Libya) (1:46PM, 7 June 2011) <twitter.com/NTC_of_Libya/status/78171104727941120>. Original tweet presented and discussed in Mattiacci (n 16).
Rob Grace, ‘Humanitarian Negotiation with Parties to Armed Conflict: The Role of Laws and Principles in the Discourse’ (2020) 11(1) Journal of International Humanitarian Legal Studies (forthcoming).
Tanisha Fazal, ‘Rebellion, War Aims and the Laws of War’ (2017) 146(1) Daedlus 71.
Fazal and Konaev (n 12).
John Kelsay, Arguing the Just War in Islam (Harvard University Press 2009); Yoshinobu Nagamine, The Legitimization Strategy of the Taliban’s Code of Conduct Through the One-Way Mirror (Palgrave 2015); Hyeran Jo and John Niehaus, ‘Through Rebel Eyes: Rebel Groups, Human Rights, and Humanitarian Law’ (2018) 81(4) Law and Contemporary Problems 101.
On the legal boundaries and interpretative issues of civilian immunity in ihl, see Emily Crawford, Identifying the Enemy: Civilian Participation in Armed Conflict (Oxford University Press 2015); Helen Kinsella, The Image before the Weapon: A Critical History of the Distinction between Combatant and Civilian (Cornell University Press 2011).
Kate Clark, ‘The Layha, Calling the Taleban to Account: Appendix 1. The Taleban Codes of Conduct in English’ (Afghanistan Analysts Network 2011) 7 <www.afghanistan-analysts.org/wp-content/uploads/downloads/2012/10/Appendix_1_Code_in_English.pdf>.
See the interpretative guideline by the icrc on the Article 13(3) of Additional Protocol ii, as discussed in icrc, ‘Rule 6. Civilians’ Loss of Protection from Attack’ (Customary ihl Database) <ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule6> accessed 15 March 2020>.
On the direct interpretation of Layeha 2010, see Nagamine (n 33) 81.
As well, Taliban acknowledges the authority of jirga (traditional assembly of leaders), sharia-based court with uelma (Muslim scholars), imam (first commander), or nayeb (deputy commander).
Taliban Response to the 2017 Afghanistan Annual Report on Protection of Civilians in Armed Conflict (12 February 2018) in United Nations Assistance Mission in Afghanistan (unama) and Office of the United Nations High Commissioner for Human Rights, Afghanistan Annual Report on Protection of Civilians in Armed Conflict: 2017 (February 2018) 75–76 <www.ohchr.org/Documents/Countries/AF/ProtectionCiviliansAnnualReport2017.pdf>.
See also Prosecutor v Lubanga Dyilo (Judgment) icc-01/04-01/06 (14 March 2012).
irin, ‘Philippines: Moves to end use of child soldiers, but problem persists’ (Refworld, 8 April 2011) <www.refworld.org/docid/4da3f6542.html>.
This issue of interpretation circles back to the question of the restrictive lawmaking role nsaas have historically took in the making of international law. See the debates in the following articles on the participation of nsaas in international law-making: Roberts and Sivakumaran (n 11); Jean d’Aspremont, ‘International Law-Making by Non-State Actors: Changing the Model or Putting the Phenomenon into Perspective?’ in Math Noortmann and Cedric Ryngaert (eds), Non-State Actor Dynamics in International Law – From Law-takers to Lawmakers (Ashgate 2010).
Monica Hakimi, ‘The Work of International Law’ (2017) 58(1) Harvard International Law Journal 1.
As implied in the analysis by Roberts and Sivakumaran (n 11); Marco Sassòli, ‘Taking Armed Groups Seriously: Ways to Improve Their Compliance with International Humanitarian Law’ (2010) 1(1) Journal of International Humanitarian Legal Studies 5, 29.
Ahmed Al-Dawoody, ‘Islamic Law and International Humanitarian Law: An Introduction to the Main Principles’ (2018) 99(3) International Review of the Red Cross 995.
Steven R Ratner, ‘Law Promotion Beyond Law Talk: The Red Cross, Persuasion, and the Laws of War’ (2011) 22(2) European Journal of International Law 459.
Helga Turku, The Destruction of Cultural Property as a Weapon of War: isis in Syria and Iraq (Palgrave Macmillan 2018); David Bowker, Laura Goodall and Rebecca Haciski, ‘Confronting isis’s War on Cultural Property’ (2016) 20(12) asil Insights.
John-Mark Iyi, and Hennie Strydom (eds), Boko Haram and International Law (Springer 2018).
unsg, ‘Children and Armed Conflict’ (20 June 2019) UN Doc A/73/907, S/2019/509, annexes i and ii.
On this role of humanitarian actions, see Dale Stephens, ‘Roots of Restraint in War: The Capacities and Limits of Law and the Critical Role of Social Agency in Ameliorating Violence in Armed Conflict’ (2019) 10(1) Journal of international Humanitarian Legal Studies 58.