Armed Non-State Actors in International Humanitarian and Human Rights Law

Foundation and Framework of Obligations, and Rules on Accountability

Konstantinos Mastorodimos

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781134800612
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

The accountability of armed non-state actors is a neglected field of international law, overtaken by the regimes of state responsibility and individual criminal accountability as well as fears of legitimacy. Yet armed non-state actors are important players in the international arena and their activities have significant repercussions. This book focuses on their obligations and accountability when they do not function as state agents, regardless of the existence or extent of accountability of their individual members. The author claims that their distinct features lead to their classification into three different types: de facto entities, armed non-state actors in control of territory, and common article 3 armed non-state actors. The mechanisms that trigger the applicability of humanitarian and human rights law regimes are examined in detail as well as the framework of obligations. In both cases, the author argues that armed non-state actors should not be treated as entering international law and process exclusively through the state. The study concludes by focussing on their accountability in international humanitarian and human rights law and, more specifically, to the rules of attribution, remedies and reparations for violations of their primary obligations.

Chapter 1

Notion of Armed Non-State Actors

Non-State Actors: the Genus of Armed Non-State Actors

Non-state actor is an umbrella term for all entities which are not assimilated to a state.¹ The term is used in the negative, compared to the phrase ‘state actor’ (or agent), and for Alston² the term was ‘… intentionally adopted in order to reinforce the assumption that the state is not only the central actor, but also the indispensable and pivotal one around which all other entities revolve’. The Articles on the Responsibility of States for Internationally Wrongful Acts³ (hereinafter State Responsibility Articles), art 4,⁴ define the state organ as

any person or entity which has that status in accordance with the internal law of the State and exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.

Therefore any organ or entity which is not officially part of the state (although at times it might be under the control of one) is a non-state actor.

A variety of actors have been classified under this heading. With reference only to collective entities whose actions (could) have some international repercussions, international organizations, terrorist groupings, non-governmental organizations, (multi) national corporations, national liberation movements and rebel groups are included.⁵ All these entities pursue different aims and carry out their activities in variable environments. In light of this, it is questionable whether a doctrinal general category of non-state actors is viable or even desirable, especially since the status of certain non-state actors differs substantially from that of others.

International organizations stand out at large because they have a full legal personality within their area of competence.⁶ They have been created, mostly, by states, although membership might not be confined to states alone. Their international regulation is moving towards the direction of a state, with the necessary adaptations to their particularities. For example, after the adoption of the Vienna Convention on the Law of Treaties (hereinafter VCLT),⁷ a comparable agreement was adopted on the law of treaties between states and international organizations or between international organizations.⁸ After the adoption of the State Responsibility Articles, a comparable work was recently concluded by the International Law Commission (hereinafter ILC) on international organizations.⁹

Non-governmental organizations and corporations are entities which operate under the umbrella of a state’s national law.¹⁰ Their importance has grown considerably¹¹ and they both might even undertake to operate a certain governmental activity, mostly with the consent of the respective state or in the absence or default of one. The debate on corporations, particularly, has sparked a considerable wave of interest from international legal scholarship,¹² since the impact of their activities might be more significant than that of states.

Rebel groups (including national liberation movements) and ‘terrorist’ organizations are associated with the use of violence in order to achieve their aims. Both of them typically operate within the borders of one state, although there is an increasing tendency for rebel groups (and a particular terrorist group, Al-Qaeda) to defy this reality. These entities are considered as illegal organizations under national laws, unlike nongovernmental organizations and corporations. They are also distinct from other non-state actors, because of their temporary and provisional character;¹³ yet some of them carry the potential to become a government of a pre-existing or new state. In that sense they differ from other non-state actors, because their aspirations usually include a significant change in their legal status, close to the archetypical example of the international law subject that is the state. As for the differentiation between rebel groups and terrorist organizations, this is sometimes totally blurred and September 11 has substantially contributed to this outcome: certain rebel groups have been designated as terrorist organizations in an effort, usually by their opponents, to de-legitimize their goals. Certainly the use of illegal tactics from the rebel groups contributed significantly to them acquiring a ‘terrorist’ status. This characterization, which sparks the applicability of a separate legal regime (the law of international terrorism), will not form part of the present book and our understanding of ANSAs will not be influenced by any designation as a terrorist organization. The next sub-chapter will be devoted to the notion of ANSAs, in order to clarify their unique characteristics.

Armed Non-State Actors

Terminology

A variety of terms have been used in order to describe armed non-state actors:¹⁴ rebel groups, armed opposition groups, insurrectional movements,¹⁵ non-state armed groups¹⁶ or simply armed groups,¹⁷ armed dissident groups,¹⁸ non-state entities¹⁹ and nongovernmental entities.²⁰ All of these terms have in essence almost the same meaning,²¹ pointing at a collective entity which possesses certain characteristics as a minimum. They also ‘have in common … an attempt to find a neutral terminology that captures the idea that the group uses force and operates beyond state control or authorisation’.²²

The term ANSA is also preferred for the following reason: in contrast to armed groups, which was (and to a certain extent still is) the predominant term used, it could capture in a more neutral way the idea that a political branch might be also included or even be in charge of the armed elements of the group. Certainly the method used to achieve the aim is not differentiated; but the means to achieve it might also be additional to an armed conflict.

Besides neutral terminology, though, ANSAs have certain features. Depending on the existence of these features, certain consequences derive with regard to both their obligations and accountability.

The Characteristics of Armed Non-State Actors

ANSAs are principally the non-state parties in a non-international armed conflict. Nonetheless, this does not imply that ANSAs are necessarily defined only in that context, since other features might become important and lead to a different status and obligations. The evolution of the notion of ANSAs in international humanitarian law will be examined, before turning the discourse to other characteristics.

The Evolution of the Notion

ANSAs were not unknown in international law, before the appearance of modern international humanitarian law. Civil wars were a reality for centuries and belligerency recognition sought to capture this phenomenon, whenever the existence of the ANSA had repercussions outside the parent state.

The Doctrine of Belligerency Recognition²³

The provisional entrance of ANSAs into international relations was possible through recognition of belligerency: subject to fulfilment of certain objective criteria and governmental recognition of belligerent status, an ANSA was vested with a limited international personality²⁴ and certain international legal norms were applicable.

These objective criteria corresponded to the ANSA’s characteristics and the quantity of violence: large-scale hostilities, occupation of a substantial part of a state’s territory, a measure of orderly administration,²⁵ observance of the laws of war and whether the entity acts under a responsible authority.²⁶ A further criterion for recognition by a third state is the need for definition of its relations with the warring parties.²⁷

These criteria require that the ANSA consists of a large number of combatants, owns heavy material and has a trained hierarchy.²⁸ Simultaneously, its own capacity to exercise a governmental function should not be neglected.²⁹

Besides these objective characteristics, the subjective feature of recognition was indispensable. For Lauterpacht³⁰ the lawful government was bound to grant recognition when the large scale of hostilities demanded the operation/applicability of the relevant rules of warfare. However, recognition is usually a voluntary act and belligerency recognition does not escape this rule.³¹ Consequently, only policy reasons³² could justify recognition.

The act of recognition entails both the state and the ANSA coming under an obligation to respect the laws of war in force in their mutual relations. When recognition comes from a third state ‘… it brings about the operation of the laws of war just in relation between the rebels and the recognising government’,³³ namely the application of the laws of neutrality. Recognition by the parent state triggers the applicability of the customary law of war.³⁴ Additionally, the recognized belligerent incurs human rights obligations.³⁵ The rules of international responsibility become applicable (including attribution) and the insurgent entity becomes liable to pay compensation for its wrongdoings.³⁶ In parallel the territorial state is deemed to be free from international responsibility for the acts of rebels.³⁷

Academic sources³⁸ cite the Nigeria/Biafra conflict as the last recorded recognition of belligerency by the incumbent government. But the current existence of the doctrine is controversial. Several international institutions³⁹ have rather recently mentioned the customary international law doctrine of recognition of belligerency, along with members of the academia.⁴⁰ The practice of some states also appears to endorse its existence. The proclamation by the Philippines of a state of rebellion in 2003⁴¹ is relative proof,⁴² although the government denies that any of its actions has ever implied recognition.⁴³

The Venezuelan’s National Assembly vote ‘… to support … Chavez’s call for Colombia to recognize the “belligerent status” of the Revolutionary Armed Forces of Colombia (FARC) and the National Liberation Army (ELN)’⁴⁴ suggests also the continuing existence of belligerency recognition. Yet the actual prospects of revival are rather faint, since the occurrence of the objective features continues to be infrequent.⁴⁵ Moreover this legal concept was designed for a completely different world order. The source of power in the international system lay exclusively with states, as evidenced by the effects of recognition solely towards the recognizing state, whereas nowadays the role of international organizations has increased up to the point that they are capable of intervening during intrastate conflicts.⁴⁶

Recognition of belligerency did not have a great impact in the practice of internal wars, although it was the only institution which sought to cover the interrelations of the parties and third states during civil wars and it would clarify both the primary rules of conduct and the secondary rules o...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Table of Case Law
• Table of International Conventions
• Table of Other Agreements
• Table of Documents from International Organizations
• Table of Travaux Préparatoires
• Table of National Documents
• Table of Documents from Non-Governmental Organizations
• List of Abbreviations
• Preface
• Introduction
• 1 Notion of Armed Non-State Actors
• 2 Classification of Armed Non-State Actors
• 3 Obligations and Accountability of Armed Non-State Actors in International Humanitarian Law
• 4 Obligations and Accountability of Armed Non-State Actors in International Human Rights Law
• 5 The Obligations and Accountability of Armed Non-State Actors: Concluding Remarks
• Bibliography
• Index