1. Introduction
The somewhat provocative question in the title was raised by Professor MottaleFootnote 1 during a discussion held at Franklin University on post-9/11 challenges in international relations and international law, including the role and status of non-state actors. However, are the two terms – ‘international humanitarian law’ (IHL) and ‘non-state actors’ (NSAs) – really contradictory? Or do we rather have to accept that if law is not static with its own end, but is rather an instrument aimed at regulating social relations in an evolving society, it should adapt and develop accordingly? In this case, the academic circles that defend an orthodox interpretation and application of IHL, which was conceived to regulate interstate armed conflicts, should pay attention to the increasing calls by field practitioners to recognise the new role played by NSAs in the international panorama and the necessity to interpret and apply IHL in the light of this new reality.Footnote 2 Only so, the acceptance and application of IHL by all parties to a conflict will be encouraged and improved.
This seems to be the underlying leitmotif of the book edited by Ezequiel Heffes, Marcos Kotlik and Manuel Ventura. In 2016, though holding different positions – Heffes was an International Committee of the Red Cross (ICRC) delegate in Afghanistan, Kotlik was a researcher at the University of Buenos Aires, and Ventura was Associate Legal Officer with the Special Tribunal for Lebanon – they all noticed that no in-depth examination had been undertaken on the role of NSAs within the context of armed conflict and IHL.Footnote 3
On the strength of their professional experience and direct engagement with non-state armed groups (NSAGs) and a variety of other actors involved in non-international armed conflicts (NIAC), the editors realised that all of these actors have some impact on how ‘IHL was interpreted, respected or deliberately disregarded and ignored’.Footnote 4 They felt compelled to attempt ‘to understand these dynamics’.Footnote 5 This led to the present compilation.
The book is divided into four parts. Following the Introduction by the editors (‘The Functions and Interactions of Non-State Actors in the Realm of International Humanitarian Law’), Part I is dedicated to ‘The Proliferation of NSAs Involved in Armed Conflict’. It is followed by Part II, ‘The Regulation of NSAs Involved in Armed Conflict beyond IHL’, which focuses on regulations other than IHL that may apply to NSAs. Part III focuses on ‘The Development of IHL by NSAs’; the fourth and final part is dedicated to ‘The Emergence of Horizontal Interactions between NSAs’. The reader is thus taken on a journey that explores the role of NSAs in contemporary armed conflicts, the existing legal framework, and its application in the field. At the end, the reader is invited to think about the importance (or the necessity) of giving due consideration to the interpretation and application of IHL by NSAs in order to promote its respect.
2. Contents of the Book
In Chapter 2 (‘What Are Armed Non-State Actors? A Legal and Semantic Approach’)Footnote 6 Annyssa BellalFootnote 7 examines the notion of armed non-state actors (ANSAs) by analysing the constitutive terms of the concept, such as armed versus non-armed, state versus non-state, and actors versus individuals. She observes the importance of words in the world of legal analysis and the problems associated with the use of terms like ‘armed opposition groups’, ‘rebels’, ‘freedom fighters’ and ‘terrorist organisations’. While potentially depicting the same (or similar) reality, these terms can convey quite different perceptions of what they represent. In that sense, they are subjective. This statement clearly recalls the famous phrase that ‘one man's terrorist is another man's freedom fighter’, which has often been invoked as one of the reasons why, so far, no universal legal definition of terrorism can be found.Footnote 8 The outcome of Bellal's analysis is that there is a multiplicity of meanings which lack clarity and that also the notion of the ANSA ‘is not as well understood under international law as one would hope’.Footnote 9
In Chapter 3 (‘Beyond Banning Mercenaries: The Use of Private Military and Security Companies Under IHL’),Footnote 10 Martina Gasser and Mareva MalzacherFootnote 11 address the legal framework applicable to private military and security companies (PMSCs) involved in armed conflict scenarios like Iraq and Afghanistan. After discussing the meaning of the term ‘private military and security company’, the authors examine the role of legal instruments such as the 2008 Montreux Document,Footnote 12 the International Code of Conduct for Private Security Service Providers and domestic regulations, questioning how IHL may and should be applied to the various services offered by PMSCs. Like Bellal, they underscore the importance of the definition of PMSCs, which, though crucial, ‘has been a constant stumbling block in debates concerning their regulation’.Footnote 13 To date, therefore, no universal definition has been adopted relating to military and security companies.Footnote 14 Therefore, several terms are employed.
For instance, there are:
• private security services, which tend to be defensive services that can be provided by armed or unarmed personnel;Footnote 15
• private military and security consulting services (PMSCS), a term that covers ‘any kind of advice and training to armed and security forces’;Footnote 16
• private military and security support services (PMSSS), specialising in secondary tasks, such as non-lethal aid and assistance, which includes general logistics, technical support and intelligence;Footnote 17
• private military services (PMS), which are generally hired by states to assist the armed forces with core military tasks.Footnote 18
On this basis the authors examine the applicable legal framework for PMSCs, with a focus on IHL.Footnote 19 They recall the existence of soft-law instruments such as the Montreux Document of 2008, but observe that given their diverse nature it is difficult to determine, in general, all the rules pertaining to private military companies.Footnote 20 One of the legal issues, for instance, is whether they are comparable with mercenaries,Footnote 21 thereby falling under Article 47(2) of the First Protocol Additional to the Geneva Conventions (AP I)Footnote 22 or Article 1 of the 1989 International Convention Against the Recruitment, Use, Financing, and Training of Mercenaries.Footnote 23 The authors conclude that it would be incorrect to hold that PMSCs operate in a legal black hole. Nevertheless, they certainly operate, to use Sassòli's words, in a ‘very chaotic legal environment’, which needs to be improved to regulate their conduct in a clearer and more transparent fashion. As a result of the adoption of soft-law initiatives such as the Montreux Document of 2008 and the International Code of Conduct Association (ICoCA),Footnote 24 there has been much progress in recent years.Footnote 25 Nevertheless, for these efforts to be effective, states must continue the international dialogue on this matter.Footnote 26
In Chapter 4 (‘The Legal Protection of Personnel of United Nations Peacekeeping Operations in Times of NIAC’),Footnote 27 Keiichiro OkimotoFootnote 28 addresses the legal status and protection in NIAC of United Nations (UN) peacekeeping personnel. The article focuses on the UN Blue Helmets and legal issues associated with peacekeeping personnel of regional organisations are intentionally excluded from the discussion.Footnote 29 In further research it would be interesting to have a comparative analysis – for example, with Organization for Security and Co-operation in Europe or NATO personnel engaged in peace support operations, such as the Kosovo Force (KFOR)Footnote 30 – considering the complexities associated with the various mandates (Chapter VI or VII of the UN Charter,Footnote 31 for example), the status of the forces acting on their behalf, and who holds operational control over them.Footnote 32 An interesting aspect is the categorisation of the UN as a NSA, a term that one would instinctively associate with irregular groups. From a formal perspective, the UN's status as an international organisation, thereby disqualifying it as a state, allows for its qualification, e contrario, as a NSA. It all depends on the interpretation and this confirms that terms like NSA and NSAG are not interchangeable, as suggested by Bellal in Chapter 2, and that these terms may even be obsolete, as remarked by the International Law Association (ILA) Committee on NSAs. In particular, it was observed that a pluralistic conception of a NSA, rather than a dichotomous classification between states and NSAs, would provide the possibility to take into account the particular features of each actor, without forcing them ‘into a one-size-fits-all mould’.Footnote 33
The author reviews, among others, the cases of Bagosora and Others Footnote 34 – in which the International Criminal Tribunal for Rwanda (ICTR) adjudicated the killing of 10 Belgian peacekeepers of the UN Assistance Mission for Rwanda (UNAMIR) by members of the Rwandan Army in April 1994 – and Ndindiliyimana and Others, in which the ICTR found the accused Nzuwonemeye and Sagahutu guilty of war crimes for their involvement in the murder of Belgian military personnel.Footnote 35 The Karadžić case is also considered,Footnote 36 in which the International Criminal Tribunal for the former Yugoslavia (ICTY) found the accused guilty of the war crime of hostage taking under Common Article 3 of the Geneva Conventions (GCs) of 1949 in relation to the hostage taking of 200 military personnel of the UN Protection Force (UNPROFOR) in Bosnia and Herzegovina (Srebrenica). Other peacekeeping missions addressed in Okimoto's contribution are the UN Mission in Sierra Leone (UNAMSIL), the UN Organization Mission in the Democratic Republic of the Congo (MONUC, which became MONUSCO in 2010), and the African Union Mission in Sudan (AMIS). The author looks further at the jurisprudence of the Special Court for Sierra Leone (SCSL) and the International Criminal Court (ICC). The protection of UN peacekeepers is examined under IHL and the 1994 Convention on the Safety of United Nations and Associated Personnel and its Optional Protocol.Footnote 37
Part II of the book, which focuses on regulation other than IHL that may apply to NSAs, opens with Chapter 5 (‘Chemical Weapons and Non-State Actors’),Footnote 38 written by Yasmine NaqviFootnote 39 and Olufemi Elias.Footnote 40 The authors – who review the applicable international legal instruments and sources, including IHL, the 1992 Chemical Weapons ConventionFootnote 41 and the resolutions of the UN Security Council and the UN General Assembly – conclude that the prohibition of any use of chemical weapons is also binding on NSAs as a matter of customary international law.
Chapter 6, written by Manuel Ventura, is entitled ‘Automatic Criminal Liability for Unlawful Confinement (Imprisonment) as a War Crime? A Potential Consequence of Denying Non-State Armed Groups the Power to Detain in NIACs’.Footnote 42 Ventura departs from the traditional controversy over whether IHL provides for the power of detention to parties to a NIAC by considering this issue from the perspective of international criminal law. Detention is also the topic covered by Frédéric MégretFootnote 43 in Chapter 7. In ‘Detention by Non-State Armed Groups in NIACs: IHL, International Human Rights Law and the Question of the Right Authority’,Footnote 44 Mégret brings attention to the different outcomes of detention by NSAGs in NIAC under IHL and international human rights law (IHRL). He observes that under IHL the issue of whether armed groups have a right to detain is tied partly to the question of whether states have the prerogative to detain under Common Article 3 and AP II,Footnote 45 a question that has not yet been settled.Footnote 46 In his view, an additional problem is that:Footnote 47
[NSAGs] may not be recognized, or be recognized only for the purposes of endorsing humanitarian obligations. If international humanitarian law does not apply to the authority to detain, then the question falls to be resolved by international human rights law. Under the latter, there must be a solid foundation to any deprivation of freedom, and the question cannot simply be one of treating captives humanely.
Mégret suggests that a theory of right authority of NSAs is missing when it comes to detaining state troops, because historically such authority has been equated with statehood. His conclusion is that ‘the moment may have come to rediscover how one can identify non-State actors that could be considered privileged in the international legal system’.Footnote 48 He does not, however, provide an answer.
Chapter 8 focuses on ‘Human Rights Obligations of Non-State Armed Groups: An Assessment Based on Recent Practice’.Footnote 49 Jean-Marie HenckaertsFootnote 50 and Cornelius WiesenerFootnote 51 examine the extent to which NSAGs can be bound by IHRL, and conclude that the answer depends on whether NSAGs have control of a territory, thus allowing them to exercise government-like functions. If they do, customary international law may impose certain human rights obligations on them, thereby reducing the protection gap as a result of the traditional non-application of IHRL to NSAGs. However, in the authors’ view, the still prevalent accountability gap requires further research and political will.Footnote 52
Along the same lines, Ilya Nuzov,Footnote 53 in Chapter 9 (‘Post-Conflict Justice: Extending International Criminal Responsibility to Non-State Entities’)Footnote 54 examines the extension of international criminal jurisdiction to NSAs. After discussing whether liability of collective entities has become a general principle of international law, he argues that the extension of prosecution beyond individuals might ‘offer more justice and recognition to victims of atrocities in post-conflict contexts’.Footnote 55 A related issue is the efficiency and impact of restorative justice approaches, such as truth and reconciliation commissions.
In Chapter 10 (‘Uses of IHL by the International Court of Justice: A Critical Approach Towards Its Role in the International Legal Arena’)Footnote 56 Brian Frenkel, Sebastián Green Martínez and Nahuel MaisleyFootnote 57 review the jurisprudence of the International Court of Justice (ICJ) and its inconsistent approach to IHL. They observe:Footnote 58
The Court has gone back and forth between authentic contributions and judicial constraint. In other words, while on certain occasions the ICJ has grounded its decisions on IHL, in other cases it deliberately refrained from doing so, arguably due to the subject matter under consideration or to justify a departure from its previous case law.
The authors portray how the ICJ has selectively applied (and refrained from applying) IHL as a legal framework, and suggest some reasons for this. Cases reviewed include, in particular, the Corfu Channel judgment (1949), the Military and Paramilitary Activities in and Against Nicaragua judgment (1986), the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory advisory opinion (2004), the Legality of the Threat or Use of Nuclear Weapons advisory opinion (1996), and the Genocide case (2007).Footnote 59
The authors try to explain the ICJ's inconsistency in addressing IHL issues by reference to its institutional role as the principal judicial organ of the UN and its function under Article 38 of its StatuteFootnote 60 to ‘decide in accordance with international law such disputes as are submitted to it’.Footnote 61 In their view, in trying to fulfil its dual task of applying international law and settling international disputes peacefully, the ICJ has always tried to strike a balance. A ruling on IHL may be ineffective for the settlement of the dispute, because the parties may maintain their opposing interpretation. On the other hand, a clarification of their IHL obligations may help them to comply with their obligation to ‘respect and ensure respect’ for IHL and thus contribute to a better protection of the victims of an armed conflict. In the authors’ view, it remains to be seen whether the ICJ will be ‘a vocal defender of the rule of law, or whether it will strategically keep silent in order to peacefully settle the dispute’.Footnote 62
In Chapter 11 (‘The Development of IHL by Human Rights Bodies’)Footnote 63 Gerd OberleitnerFootnote 64 reviews the practice (resolutions, concluding observations and judgments) of international and regional human rights bodies (the UN Human Rights Council, UN treaty bodies, the Inter-American Commission and Court of Human Rights, the European Court of Human Rights, and the African Commission on Human and Peoples’ Rights) when confronted with situations of armed conflict. As remarked by the author, even though their mandates are usually restricted to human rights, the various bodiesFootnote 65
have on various occasions referred to IHL. In doing so, they have the potential not only to clarify the interplay between IHRL and IHL but also to contribute to the further development of the latter. Given that these human rights bodies are composed of judges or independent experts, or may otherwise rely on independent expertise, their practice represents a non-state perspective on IHL and its development.
Oberleitner refers, inter alia, to the findings of the International Fact-Finding Mission on Israeli Settlements in the Occupied Palestinian Territory in its Report to the 22nd session of the Human Rights Council in 2013, which concluded that Israel is in violation of Article 49 of GC IV regarding the transfer of the civilian population in occupied territory, and the findings of the Independent International Commission of Inquiry on the Syrian Arab Republic, which referred extensively to violations of IHL in its report on the battle for control of the city of Aleppo. The author also addresses the Universal Periodic Review process with which the Human Rights Council was entrusted by UN General Assembly Resolution 60/25, requiring the carrying out of regular assessments of the human rights situation in every UN member state.Footnote 66
Other interesting cases and processes that address the concomitant or concurrent application of IHL and IHRL include the General Comments of the Committee on the Rights of the Child, on the basis of Article 38(1) of the 1989 Convention on the Rights of the Child.Footnote 67
With regard to Israel, for example, the author observes that the Committee on the Rights of the Child referred to GC IV and invoked ‘the rules of distinction between civilians and combatants and the rules on proportionality of attacks which cause excessive damage to civilians’.Footnote 68 He remarks that other treaty bodies have been reluctant to invoke IHL. For example, the Human Rights Committee, monitoring the implementation of the 1966 International Covenant on Civil and Political Rights (ICCPR),Footnote 69 made it clear that IHRL continues to apply in times of armed conflict. With regard to Israel's periodic report in 2003 on the situation in the West Bank and Gaza, it noted that the application of IHL during armed conflict must not preclude the application of the ICCPR.Footnote 70
Oberleitner observes that ‘the Inter-American Commission on Human Rights has gone further than any other human rights body in addressing violations of IHL’Footnote 71 and reviews its case law, with particular reference to Disabled Peoples’ International v United States, the cases of Arturo Ribón Avilán v Colombia and Hugo Bustios Saavedra v Peru, and the 1988 Juan Carlos Abella v Argentina (La Tablada case), which allowed the Commission to formulate what in Oberleitner's view remains ‘the most far-reaching consideration of IHL by a human rights body’.Footnote 72
Oberleitner further analyses Coard and Others v United States (1999), which dealt with an international armed conflict (IAC) rather than a NIAC, and the Commission's examination in 2002 of the situation in Guantanamo Bay (Cuba), which concluded that under Article 5 of GC III and Article XVIII of the American Declaration of the Rights and Duties of Man,Footnote 73 the United States had to provide a competent tribunal to decide the legal status of the detainees.Footnote 74
The author then examines the Inter-American Commission's Report on Terrorism and Human Rights (2002), in which the Commission claimed again the competence to interpret human rights norms in light of IHL,Footnote 75 before concluding that much more detailed analyses of IHL obligations can be found in the Commission's country reports, such as its third country report on Colombia, in which a whole section is devoted to IHL.Footnote 76
With regard to the European Court of Human Rights (ECtHR), Oberleitner undertakes a thorough analysis of what he calls a sort of ‘European human rights law of armed conflict’, under which the ECtHR, regardless of whether an operation or situation may qualify as an armed conflict subject to IHL, applies the European Convention on Human RightsFootnote 77 to it.Footnote 78 Armed conflict scenarios considered by the ECtHR and addressed in this chapter include the 1956 uprising in Hungary,Footnote 79 the two Chechen wars (from 1994 to 1996 and from 1999 onwards),Footnote 80 and the occupation of Iraq by UK military forces (with particular reference to Al-Jedda v United Kingdom,Footnote 81 Al-Skeini and Others v United Kingdom Footnote 82 and Hassan v United Kingdom,Footnote 83 all of which concerned the detention of Iraqi nationals by UK forces). The author concludes his review by examining the relatively limited case law of the African Commission on Human and Peoples’ Rights, addressing, for example, its responses to state reports, such as that relating to Mali in 2013,Footnote 84 or the case in 2003 of the Democratic Republic of the Congo v Burundi, Rwanda and Uganda, in which the Commission responded that systematic rape is a violation of Article 76 of AP I.Footnote 85 Overall, Oberleitner concludes that:Footnote 86
[w]hile the complementary nature of human rights and IHL is seen as an established fact by all human rights bodies, their practice on the actual application of the law is uneven. While no human rights body rules out the application of IHL as being outside its respective mandate, all are reluctant to actually resort to it.
In Chapter 12 (‘Targeting Members of Non-State Armed Groups in NIACs: An Attempt to Reconcile International Human Rights Law with IHL's (De Facto) Status-Based Targeting’)Footnote 87 Nader Diab exposes the concerns over the unsatisfactory approach to IHL of various human rights bodies in situations where lethal force was used against persons in NIACs,Footnote 88 and examines whether the understanding of the right to life under IHL and IHRL, especially in relation to the targeting of members of armed groups in NIACs, may be reconciled.Footnote 89
Diab focuses on the rights of members of the NSA, rather than on the NSA's obligations. His reflections become particularly relevant in the context of the war on terrorism, especially with regard to those NSAGs that are involved in a NIAC but which, at the same time, have been qualified as terrorist movements. Interesting cases addressed by Diab in this regard are Finogenov and Others Footnote 90 related to Chechnya, McCann Footnote 91 related to Northern Ireland, and Özkan and Others Footnote 92 related to Turkey and the PKK. His conclusion is that the flexibility of IHRL in terms of its ‘permissiveness or restrictiveness regarding the use of lethal force depending on the circumstances of each case’Footnote 93 and the ‘lack of clarity in the law of targeting of persons in NIAC’Footnote 94 permit a certain synergy between IHL and IHRL.
His conclusion is that ‘human rights bodies should attempt to interpret IHRL in light of the relevant rules of IHL, without replacing one with the other or distorting any of both branches’.Footnote 95 They ‘should not fear the risk of declaring a breach of IHRL for lawful acts of IHL after failing to harmonize the two branches’.Footnote 96 In the words of the ICJ in the Genocide case:Footnote 97
There can be no doubt that, as a general rule, a particular act may be perfectly lawful under one body of legal rules and unlawful under another. Thus it cannot be excluded in principle that an act carried out during an armed conflict and lawful under international humanitarian law can at the same time constitute a violation by the state in question of some other international obligation incumbent upon it.
The fourth part of the book is entitled ‘The Emergence of Horizontal Interactions between NSAs’. It opens with Chapter 13 (‘Generating Respect for the Law by Non-State Armed Groups: The ICRC's Role and Activities’).Footnote 98 The authors of the chapter, Anne QuintinFootnote 99 and Marie-Louise Tougas,Footnote 100 discuss the legal bases for the work of the ICRC with NSAGs in various contexts, aimed at promoting respect for IHL. They also examine concrete ways to integrate IHL into the practice of NSAGs, and recent developments in this area. They first cover the history of the ICRC's involvement in the dissemination of IHL among NSAGs – which can be traced back to Henry Dunant's attempt to facilitate negotiation between France's legal government, Paris Communards and European diplomats during the Paris Commune in 1871Footnote 101 – and the role played by Common Article 3 as the primary legal basis for the ICRC's action in NIACs.Footnote 102 They illustrate the role played by the Codes of Conduct adopted by such groups, a selection of which were published in 2011 by the ICRC, including codes developed by the People's Liberation Army in China, the New People's Army in the Philippines, the National Liberation Army and the FARC in Colombia, the National Redemption Army in Uganda, the Revolutionary United Front in Sierra Leone, and the National Transition Council in Libya.Footnote 103
Other mechanisms through which parties to NIACs may be encouraged to commit themselves to comply with IHL are special agreements, such as those concluded by the various parties during the conflicts in the former Yugoslavia in the 1990s. In 1991, for example, the Socialist Federal Republic of Yugoslavia and Croatia signed a Memorandum of Understanding under the auspices of the ICRC, agreeing to comply with a series of IHL rules going beyond those already applicable in NIAC.Footnote 104 As highlighted by the authors, even though these agreements may not prevent the commission of war crimes, they represent the conflicting parties’ official recognition of the applicable law.Footnote 105 For instance, the ICTY Appeals Chamber used the 1991 and the 1992 agreements to confirm the existence of a prohibition on attacking civilians.Footnote 106 A further instrument is the unilateral declaration, such as that of the Coordinadora Guerrillera Simon Bolivar, an organisation encompassing several NSAGs parties to the conflict in Colombia in 1987.Footnote 107 Reference is also made to the so-called rappel du droit (recall of the law), a written document such as a letter or a memorandum used by the ICRC, which is communicated to the parties in a bilateral and confidential manner, providing a basis to exchange on IHL and protection issues.Footnote 108 Another important tool is dissemination through training and education. The authors cite, for instance, the often-debated example of the IHL training programme that the ICRC carried out in 2014 and 2015 with Hamas Izz al-Din al'Quassam Brigades, the military wing of the Palestinian organisation, and two other Gaza-based militant groups.Footnote 109
A final important aspect addressed in Chapter 13 is the criticism raised against the idea of engaging with NSAGs on IHL in light of the war on terrorism. The authors observe that ‘[a]lthough the term ‘terrorist’ has no legal meaning under IHL, it is undeniable that the legal framework governing terrorism has an impact on humanitarian action, especially during NIACs’.Footnote 110 The problem has arisen also at the domestic level. The authors illustrate some instances in which humanitarian associations challenged the US legislation in this regard, such as in Holder v Humanitarian Law Project (2009), and the problems associated with the vagueness of the term ‘support’ to terrorist organisations, which may cover training in IHL. As highlighted by the authors, however, criminalising IHL training activities and other humanitarian activities associated with NSAGs placed on terrorist lists would ignore the ICRC's right to offer its services to all parties to an armed conflict.Footnote 111 Their conclusion is that it is at the core of the ICRC's mandate to engage with NSAGs on IHL-related issues and that in order to be successful it is important to understand their structures, mechanisms and means. Material and legal challenges to the ICRC's work are often to be ascribed to a lack of understanding of the ICRC's mandate.Footnote 112
In Chapter 14 (‘Compliance with Humanitarian Rules on the Protection of Children by Non-State Armed Groups: The UN's Managerial Approach’)Footnote 113 Marcos Kotlik examines the framework created by the UN to address the situation of children affected by armed conflicts, which relies primarily on a monitoring and reporting mechanism (MRM) implemented by personnel on the ground, under the supervision of the UN Office of the Special Representative of the Secretary-General for Children and Armed Conflict, and the endorsement of the UN Security Council.Footnote 114 He estimates that around the world there are more than 300,000 child soldiers and that the most serious violations against them are committed by both states and NSAGs. In the aftermath of the Second World War, IHL and IHRL treaties established that special respect and protection is owed to children affected by armed conflict.Footnote 115 The author reviews the framework devised by the UN to address the situation of children affected by armed conflict and the role played by the Representative for Children and Armed Conflict appointed in 1997 by the UN Secretary-General.Footnote 116 In his view, this framework was conceived as a management tool to improve compliance with international rules by NSAGs, by identifying the features that may help in this regard as well as the shortcomings. Kotlik's main contention is that although this may be a good strategy, there are strong institutional limitations that may pose an obstacle to its success.Footnote 117
The author's final remark is that the success of the MRM depends on the willingness of the NSAGs to comply with international rules on the protection of children affected by armed conflict, and that the latter may be stimulated by dialogue. One of the positive outcomes thereof has been the ban on landmines and cluster bombs, which had a devastating impact on children in armed conflict.
The final contribution, by Ezequiel Heffes, is Chapter 15 (‘Non-State Actors Engaging Non-State Actors: The Experience of Geneva Call in NIACs’).Footnote 118 Heffes presents the work and methods employed by the non-governmental organisation (NGO) Geneva Call in attempting to persuade ANSAs to respect IHL, focusing in particular on its child protection programme. Since its creation in 2000, Geneva Call has engaged with more than 120 ANSAs worldwide. As of 2019, 64 had signed one or more Deeds of Commitment. As observed in Heffes’ concluding remarks, overall the compliance record of ANSAs with their deeds has been good. Signatories have taken concrete steps to implement their commitments, such as destroying their stockpiled anti-personnel mines. For the sake of humanitarian outcomes some ANSAs have made similar undertakings to protect civilians from the effects of armed conflict or have decided to cooperate with the state they were opposing. Other ANSAs still reject international law for various reasons. As pointed out by Heffes with regard to the work of Geneva Call, one of the main challenges to increasing compliance with IHL by ANSAs is their fragmentation and lack of enforcement capacity. One of the main difficulties, in practice, is obtaining access to such NSAs, on the grounds either of security, travel restrictions, or domestic measures that prohibit or even criminalise dialogue with NSAs defined as ‘terrorist organisations’.Footnote 119
Despite these challenges, Geneva Call's experience indicates that it is indeed possible to engage with NSAs on protection issues. Therefore, to conclude the volume, Heffes notes that ‘international law does not relate exclusively to States anymore, but that there are dialogues, conversations, exchanges, and negotiations actively taking place between non-state actors. This is a reality that can no longer be ignored’.Footnote 120
3. A Critical Appraisal
Various lessons can be learned from this book. The first is that there is no clear-cut definition of ‘non-state actor’. The term is a catch-all for different categories: NSAGs involved in an armed conflict; peacekeeping forces (especially when mandated by a UN Security Council resolution based on Chapter VII of the UN Charter); UN human rights bodies forming jurisprudence or practice on the application of IHL and IHRL; PMSCs; and criminal organisations or terrorist groups using methods and means traditionally resorted to by military or paramilitary armed groups. In its final working session in 2016, the ILA Committee on NSAs posed fundamental questions about the definition of NSAs and their involvement in international law. In the view of the Chair, this depended on the perception of international law.Footnote 121
The ILA Committee concluded that the term may be ‘even obsolete’, in that it tries to encompass diverse entities that probably do not share a ‘single legal characteristic’.Footnote 122 This view is mirrored by the structure of the book under review: a collection of chapters on very specific and diverse subjects, with the common denominator of the overall title.
The second lesson is the need for further clarification of the legal framework applicable to NSAs. Their status, protection and obligations in times of NIAC need further definition. The contribution thereto by IHRL bodies may have a boomerang effect. The intrinsic risk is that the different objectives of IHL and IHRL may be overlooked and that, as expressed by the ICRC, ‘the universal appeal of IHL might be diluted when regional human rights bodies produce contradictory decisions, inconsistent case law and double standards’.Footnote 123
This lack of clarity is as a result both of the fragmentation and diversity of NSAs, and of the unwillingness of states to grant further rights to NSAs out of fear that this would be a step towards their legitimisation. This issue had already arisen in 1977, with the adoption of AP II.Footnote 124 It is for this reason that it was decided that the application of AP II would not bar states from prosecuting under domestic criminal law the taking up of arms and the use of lethal force against their regular armed forces, notwithstanding compliance with IHL.Footnote 125 However, this dichotomous approach may become problematic, especially where domestic courts are called upon to try organisations that have been involved in a NIAC and have been qualified as terrorist organisations in third states. What legal regime should apply under such circumstances? IHL, under which some conduct may be lawful; ordinary domestic criminal law provisions; or specific anti-terrorism provisions? This was one of the issues that arose in the LTTE case, heard in 2019 by the Swiss Federal Court. The Office of the Federal Attorney General had accused 13 individuals of having supported the Liberation Tigers of Tamil Eelam (LTTE), a ‘presumed terrorist organisation’ which has been listed as a terrorist organisation in over 32 states, through a sophisticated microcredit system.Footnote 126 The Federal Criminal Court ruledFootnote 127 that there was not enough proof to consider the LTTE a criminal organisation under Article 260ter of the Swiss Criminal Code.Footnote 128 On appeal, the Federal (Supreme) Court confirmed the judgment, holding that this provision, originally adopted to fight against the mafia, was later extended to terrorist organisations such as Al-Qaeda and the Islamic State, but not to organisations pursuing other objectives, even though these may resort to acts of terrorism.Footnote 129 It concluded that the LTTE's goals included the conduct of a conventional armed struggle, the quasi-state administration of an area, and the recognition of the independence of their ethnic community.Footnote 130 Therefore, it did not qualify as a criminal organisation. In this kind of case the difficulties lie with the qualification of the NSAG, the classification of the context, and the choice of the applicable legal regime (IHL, domestic or transnational criminal law). The Federal Court observed that the Federal Criminal Court had ruled that it could not be demonstrated that the alleged acts of violence committed against civilians could be attributed to the LTTE. Moreover, these acts had taken place in the context of an armed conflict with the government of Sri Lanka and it was unknown whether these acts could be considered unlawful under IHL. One of the appellants, instead, argued that the LTTE had perpetrated numerous acts of terrorism against civilians and used methods – such as the use of human shields, recruitment of child soldiers, taking of hostages and political killings – that were in any case unlawful, reason for which it should have been considered a terrorist group. The Federal Court, however, observed that the object of the proceedings was not the qualification of the LTTE's conduct under IHL: the only question to be addressed was whether, and if so to what extent, the accused had acted in violation of Article 260ter of the Swiss Criminal Code.Footnote 131
The Swiss legislator partly managed to avoid the problem of the choice of the applicable legal paradigm in the context of the ‘fight against terrorism’ by adopting particular legislation that specifically outlawed Al-Qaeda and the Islamic State and criminalised any form of participation in and support for these organisations, regardless of the context or their legal status.Footnote 132 This, however, was an ad hoc solution, which did not solve the general problem of the qualification of NSAGs under domestic criminal law and IHL.
The third lesson is that repression is not necessarily the major triggering factor for a better observance of IHL in NIAC by NSAGs: the key is to find a mutual interest of all the parties involved, including NSAGs, in this regard. An indicator thereof is the fact that one of the bloodiest NIACs of the last decade – in Syria – broke out after the end of the conflicts in Rwanda and the former Yugoslavia, and regardless of the rich jurisprudence of two UN ad hoc tribunals. As observed by Gavrilova:Footnote 133
The work of humanitarian organisations focusing on engagement in a dialogue with NSAGs demonstrates that these actors are willing to take ownership and responsibility for compliance with IHL provisions. There are numerous factors that can potentially make NSAGs more or less interested in abiding by relevant regulations. While the sense of responsibility, positive self-image and legitimacy in the eyes of the local population, as well as at the international level, can contribute to compliance with IHL, the lack of positive incentives coupled with criminalisation of all NSAG activity could be expected to result in decreased motivation to respect rules and further radicalisation.
In conducting this dialogue with NSAGs, which may be facilitated by third neutral parties, the distinctive features of the NSAG involved should be considered and the communication strategy be tailor made.
The fourth lesson is that there may be a shift in the traditional state-centric vision of international relations and international law, with NSAs increasingly acquiring the rights of a sovereign state.Footnote 134 This trend is still very controversial, especially in relation to the power or authority to detain of NSAGs, which they already exercise de facto.Footnote 135 A Machiavellian approach may lead one to conclude that as the only alternative to killingFootnote 136 and as the malus minor,Footnote 137 such a power or authority should be acknowledged and legalised. As observed by Mégret, ‘the question of an authority to detain (and behind it, the question of the broader privilege of belligerency) is one that begs an answer under international law’.Footnote 138 According to some, the legal basis for an inherent power to detain or intern persons for imperative reasons of security may be found in conventional and customary law regulating NIAC,Footnote 139 whereas according to others no such right can be derived from IHL.Footnote 140 Objections to an inherent power and authority to detain and the interchangeability of the two termsFootnote 141 have been criticised as reflecting a strictly formalist approach to the law.Footnote 142 Others, again, have remarked that the fact that IHL regulates detention by NSAGs in NIAC (which is otherwise unlawful under domestic law) does not allow any conclusion on its authorisation, in that IHL does not clarify the matter at all.Footnote 143 Which answer is correct? Is there a legal basis to derogate from the sovereign right to detain in favour of NSAGs? Moreover, which NSAGs should benefit from such a derogation? Such determinations would require, first of all, a classification of the NSAG. Some have observed that the right to detain should not be recognised with regard to all NSAGs: a distinction should be drawn between groups with some level of organisation and control of the territory and guerrilla movements.Footnote 144 The reasoning is that it may be easier for the first group to comply with IHRL (as opposed to IHL) requirements for detention, which presupposes the existence of some form of physical facility. As seen, however, no consensus on a definition of NSA(G)s has yet been reached. In the meantime, NSAs have been active, developing their own practices. A question in this regard is whether they are empowered to create new law. Mégret concludes his chapter with the following argument:Footnote 145
The recognition that NSAGs are increasingly involved in the development of international law and the perception that an international law that fails to take that participation into account would be illegitimate can further enrich our understanding of when NSAGs can lawfully detain. Indeed, we are already past the point where the official subjects of international law are considered to have any normative effect on the regulation of armed conflict.
Other authors, like Gavrilova, have observed that although the principle of equality of belligerents is important for ensuring compliance with IHL,Footnote 146 it does not imply equality under international law.Footnote 147 This principle, which is encompassed by conventional IHL,Footnote 148 is based on the idea that the commitments made by states under the GCs apply alsoFootnote 149
to any established authorities and private individuals within the national territory of that State and certain obligations are therefore imposed upon them. The extent of rights and duties of private individuals is therefore the same as that of the rights and duties of the State. Although this argument has occasionally been questioned in legal literature, the validity of the obligation imposed upon insurgents has never been contested.
The principle applies (under the jus ad bellum) regardless of the motives of a belligerent group and whether the latter may be subject to criminal proceedings under domestic criminal law for having taken up arms. It is valid for all types of armed conflict and it plays an important role in ensuring the compliance of NSAs with IHL.Footnote 150 Gavrilova argues that if specific conduct is considered to be compliant with IHL, this conclusion will hold true regardless of the actor's identity – that is, whether it is a state or a NSA. Consequently, if IHL admits administrative detention by a state, the same should apply to NSAGs. Such an acknowledgment, in her view, would increase the latter's motivation to comply with IHL.Footnote 151 However,Footnote 152
even if one accepts a hypothesis that IHL confers a limited or functional legal personality on NSAGs, it does not automatically lead to the capacity of non-state actors to participate in the formation of customary rules of international law. On the contrary, despite arguable positive implications of the acceptance of practice of NSAGs as evidence leading to the formation of a customary rule, this idea was explicitly rejected by the International Law Commission in its study on the identification of customary international law.
While NSAs cannot create customary law, states can. What is their position in this regard? Gavrilova, on the basis of her review of the power to detain, concludes that even though state practice seems to suggest the formation of a customary rule authorising internment in NIAC, it is still too ambivalent to reach any conclusions.Footnote 153
Thus, even though there might be good arguments – as discussed in the book under review – to recognise to some extent the right of NSAGs to detain and to adjudicate persons under criminal law, the risk of abuses and violations of due process guarantees is too high a risk to pay. Such delegation would require a careful screening and selection of the NSAGs, possibly subject to review. Otherwise, the risk of abuses and of individuals being captured and detained for the wrong reasons, without any possibility for the state or any supranational organisation to exercise any control of due process, would be too high.Footnote 154 A review process by an independent authority, in order to ensure the observance of due process and procedural rights, however, may not always be practicable. Here is where pragmatism clashes with formalism. As already mentioned, some contend that the objections against a legal basis in IHL for a right to detain are too formalistic. Formalism, however, ensures compliance with legal requirements. Only a formal categorisation of NSAGs may ensure that the authority to detain is granted to those with proven ability to comply with international standards. Thus formalism is a necessary ‘evil’ that operates as a safeguard against abuses and ensures compliance with the rule of law, especially when the restriction of fundamental rights is at stake. This is why, in the reviewer's opinion, the regulation of detention in NIAC by IHL should not be interpreted as implying an inherent right of NSAGs to detain.Footnote 155 The fact that NSAGs detain in practice does not mean that this practice should be ‘legalised’, i.e. given legitimacy. States must exercise their authority subject to judicial (and political) review mechanisms: they are bound to comply with their (written or unwritten) constitutions and international law obligations. NSAs would not necessarily be subject – also for practical reasons – to the same degree of review and control. Analogous criticism has been expressed with regard to the privatisation of detention facilities in peacetime.Footnote 156
Similar concerns arise with regard to a potential empowerment of NSAGs to adjudicate cases. They may not necessarily be unwilling to comply with due process obligations: depending on the circumstances and their level of organisation, they may lack the required logistical facilities or sufficiently trained personnel for that purpose. Moreover, regardless of whether they may be able to guarantee fair trials, the question is whether they should be legitimised to adjudicate criminal cases.Footnote 157 This question has arisen in particular under Article 28 of the ICC StatuteFootnote 158 in relation to the criminal responsibility of commanders of irregular armed forces in failing to discharge their duty to punish crimes committed by their subordinates.Footnote 159
Ultimately, the recognition of the power of NSAGs to exercise powers associated with statehood may imply their increased legitimacy, a (still) delicate issue,Footnote 160 as proven by the reticence of some states (still ongoing) to ratify the 1977 Additional Protocols.Footnote 161
4. Conclusions
This review was triggered by the author's hope of finding the answer to various legal questions arising in relation to the prosecution of NSAGs classified as ‘terrorist groups’ in some states while involved as parties to NIACs. This classification, as illustrated by the Swiss LTTE case, is far from simple.
The dichotomous approach to NSAs, whose conduct may in some circumstances be lawful under IHL but unlawful under domestic criminal law, often proves to be problematic. For the criminal lawyer, the major difficulty lies in the classification of the NSA and the choice of the applicable legal regime. For the IHL lawyer, instead, the difficulty lies in finding ways to enhance respect for and the observance of IHL by NSAGs, notwithstanding the fact that compliance will not grant these groups immunity from criminal prosecution under domestic law.
Some of the above-mentioned reviewers’ questions have been left unanswered. However, the book, which was by no ways meant to be comprehensive, manages – thanks to its multi-angled approach – to indicate clearly the path that in the editors’ opinion should be taken. The editors’ view is that the only way to clarify the situation is to grant due consideration to the role played by NSAs in applying and developing IHL, through an extensive interpretation of the law or de lege ferenda.
As illustrated in the volume under review, there have been various attempts to interpret the law so as to recognise an inherent power, or even an authority, of NSAGs to exercise specific rights, such as the right to detain or to adjudicate cases. At the same time there have been arguments to suggest that the practice of NSAs may be capable of creating customary rules. These attempts to adapt the law to the new reality of armed conflicts being fought primarily by NSAs are motivated by pragmatism. As observed by Andrew Clapham in the Foreword:Footnote 162
[The editors went] beyond the doctrinal debates over whether NSA have personality, are subjects or objects of international law, or whether they are bound or not by international obligations. The authors drew on their personal experiences to explain how non-state actors adjust their behaviours in light of international law, how such actors are contributing to the development of international law, and what sort of policies should be adopted towards non-state actors in order to ensure a better framework for the protection of those affected.
The book, therefore, has a very pragmatic approach. The editors point towards the policies that ought to be considered, some of which, as remarked by Clapham, ‘require no change to the legal framework’ but rather ‘new ways of seeing the issues’.Footnote 163 There may be instances, however, where this may not be sufficient and where concrete steps are necessary ‘to realise increased possibilities for holding accountable those who transgress fundamental humanitarian and human rights norms’.Footnote 164
IHL has always been very realistic: it accepts that violence is intrinsic to war and tries to put limits thereto. Similarly, it regulates detention in times of NIAC without expressing itself on the legality thereof when exercised by NSAGs. IHL lawyers constantly look for ways to interpret and adapt IHL to the necessities of modern conflicts, of which NSAs are an existing and undeniable component. The volume edited by Heffes, Kotlik and Ventura gives a good overview of the various arguments in support of this need, explaining in particular why there is need for clarification of the legal status of NSAs and the applicable legal framework. It also illustrates the misunderstandings that derive from the use of the term ‘non-state actor’ as a label for a variety of entities that do not form a homogeneous group. The achievements of Geneva Call in the last years, with the various Deeds of Commitment signed with NSAs, are a good indicator of the fact that not all NSAs are unwilling or unable to comply with IHL. Consequently, the two terms, NSAs and IHL, are not necessarily contradictory. Such a conclusion would be too simplistic. The question, however, is whether in the long term, the formal recognition of specific rights for NSAs may risk being counterproductive, opening Pandora's box, and thereby leading to further fragmentation of the society in which states may be weakened even further, with the intrinsic risk of a loss of review and accountability for violations of fundamental rights.
