INTERNATIONAL HUMANITARIAN LAW

International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. International humanitarian law is also known as the law of war or the law of armed conflict. International humanitarian law is part of international law, which is the body of rules governing relations between States. International law is contained in agreements between States treaties or conventions, in customary rules, which consist of State practise considered by them as legally binding, and in general principles. International humanitarian law applies to armed conflicts. It does not regulate whether a State may actually use force; this is governed by an important, but distinct, part of international law set out in the United Nations Charter. 1

There are two core questions involved before one can decide upon the status of the armed conflict. These questions are: 1. What is the conflict status? What law of armed conflict does apply to the conflict in question? 2. What are the individual statuses of those are involved in the conflict? What can they lawfully do and to what rights and protection they are entitled?

NON STATE ACTORS

Most of todays armed conflicts take place within states and are waged by at least one NSA fighting state forces and/or other NSAs. In these conflicts, frequent violations of humanitarian norms are committed by both state and non-state parties. NSAs also frequently control or heavily influence areas where civilians live. Consequently, efforts to protect civilian2 populations should address not only the behavior of states, but also that of NSAs.3 There is no universally accepted definition of NSAs. For the purpose of this paper, an NSA is defined as any organised group with a basic structure of command operating outside state control that uses force to achieve its political or allegedly political objectives.4 Such actors include rebel
1 2

http://www.icrc.org/eng/assets/files/other/what_is_ihl.pdf The International Committee of the Red Cross (ICRC) has defined civilians in internal armed conflict as all persons that are not members of state armed forces or the armed wing of organised armed groups where they perform continuous combat function. Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Law, (Geneva: ICRC, 2009), 16 and 32-34. 3 Punishment of Non State Actors in Non- International Armed Conflict, William A Schabas 4 This is based on the definition used by the NGO Geneva Call. See for example Anki Sjberg, Armed Non-State Actors and Landmines. Volume III: Towards a Holistic Approach to Armed Non-State Actors? (Geneva: Geneva Call and the PSIO, 2007).

groups and governments of entities which are not (or not widely) recognised as states. This definition excludes paramilitaries that are under the effective control of a state,10 but it does not exclude when an NSA is fighting another NSA. The criterion of a basic command structure is especially important for humanitarian practitioners, since in the absence of a chain of command the NSA is more a loose grouping of armed individuals than a defined actor.5 Thomas, Kiser and Casebeer (2005) assert that "VNSA play a prominent, often destabilizing role in nearly every humanitarian and political crisis faced by the international community".6 As a new species of actors in international relations, VNSAs represent a departure from the traditional Westphalian system of states in two ways: by providing an alternative to state governance and challenging the state's monopoly of violence. Phil Williams, in an overview article, states that "violent non-state actors (VNSAs) have become a pervasive challenge to nation-states" in the 21st century".7 The study of non-state actors does not fit into conventional paradigms of international relations based on a state-centric worldview. As for armed groups, NSAs have traditionally been considered challengers without formal responsibility, while governments are the upholders of order and security, the providers of public goods. Yet, it is increasingly recognised that NSAs are key actors in contemporary armed conflicts and that interest in studying them is well-based in both academia and policy research.8 From a legal perspective, however, international law remains largely state centric, existing treaties and their enforcement mechanisms remain primarily focused on states and NSAs cannot negotiate or become parties to relevant international treaties.9 There is no consensus on whether they contribute to the formation of customary international humanitarian law (IHL).

CHARACTERSTICS OF NON- STATE ACTORS 1. TERRITORY

Some NSAs operate openly in international fora and have representations in different countries, while others operate clandestinely. How NSAs (as non-states) can operate internationally and nationally is largely determined by the community of states, mainly by the concerned and neighbouring states. In addition to political considerations, the way NSAs are approached by
5

Paramilitary groups are hence included in this definition only in the cases when they are sufficiently independent from the state apparatus. In other cases, in principle, responsibility for the actions of these groups could be attributed to the state. 6 Thomas, Kiser & Casebeer 2005 7 Williams 2008 8 www dcaf ch content download 53925 812465 file NS Final pdf 9 IHL is binding to all parties to a conflict, but is generally not applicable in situations short of armed conflict. Human rights law applies at all times (with the exception of appropriate derogations), but there is debate as to what extent it directly binds NSAs.

external (including humanitarian) actors is also dependent on their link to territory. In fact, many NSAs control or significantly influence activities within a territory and thereby the lives of thousands of individuals. Notable current and former examples of NSAs in a position of territorial control are the Moro Islamic Liberation Front in the Philippines, the Liberation Tigers of Tamil Eelam (LTTE) in Sri Lanka, the Sudan Peoples Liberations Movement rmy in South Sudan and the Communist Party of Nepal-Maoists.10

2. IDENTITY AND RESOURCES

Another way of understanding and differentiating NSAs is the extent to which they rely on identity and resources in order to organise and mobilise their members. Even territory can be understood as one type of (expensive) resource that an NSA may have or fight for, which, in its turn, can enable access to other resources. The day-today material resources of NSAs are for example weapons, money, uniforms, means of transportation/communication and other types of equipment. In addition to such material goods available from NSAs there are also services, such as the provision of justice, land reforms and campaigns to improve health. Such services can be provided to members and supporters, but also to individuals under the control or influence of NS s For instance, in Burmas Shan state and the former Sri Lankan LTTE enclaves, NSAs made some efforts to redistribute wealth to their constituencies, providing them with both physical protection and basic social services.

3. RELATIONSHIP TO WIDER SOCIETY

In addition to internal dynamics, NSAs also have multiple links to and interact with other organisations and actors. Hence, a third dynamic according to which NSAs can be understood is their level of marginalization and general relationship to the wider society, notably civilian communities. It has been argued that elements linked to security concerns and secrecy, the fact of facing a common enemy and the construction of their own cognitive processes11 would all contribute to making the group solidarity of NSAs stronger, while excluding them from the larger society. This is indeed often the case for those labeled as terrorist groups and some criminal gangs.12 While totally marginalized groups (such as terrorist cells) largely can set their own standards for behavioral appropriateness, NS are often not totally self-excluding: they seek to control and regulate local populations, pursue outside contacts, have business cards and websites, etc.

TYPES OF NON STATE ACTORS 1. BELLIGERENTS

10 11

www dcaf ch content download 53925 812465 file NS Final pdf Donatella della Porta, Social Movements, Political Violence, and the State: A Comparative Analysis of Italy and Germany (Cambridge: Cambridge University Press, 1995) 177, 180 and 204. 12 Sudhir Venkatesh, Gang Leader for a Day: A Rough Sociologist Takes to the Streets (New York: Penguin, 2008).

2. INSURGENTS BELLGERENTS
Belligerency is defined as the condition of being in fact engaged in war. A nation is deemed a belligerent even when resorting to war in order to withstand or punish an aggressor. A declaration of war is not necessary to create a state of belligerency. For example, the United States and the Peoples Republic of China were belligerents during the Korean conflict, though both parties avoided characterizing the hostilities as war. The 1949 Geneva Convention Relative to the Treatment of Prisoners of War (Geneva Convention III) applies not only to declared war but to any armed conflict between parties to the Geneva conventions and to the occupation of the territory of a party even if unresisted. Under Geneva Convention III, lawful belligerents comprise members of the armed forces as well as the members of militias, voluntary corps, and organized resistance groups who are commanded by a person responsible for his subordinates, have a distinctive sign, carry arms openly, and conduct operations lawfully. A nation departing from strict neutrality by giving assistance to one of the contending factions in a war may still be considered a nonbelligerent under certain circumstances. See also Geneva conventions; neutrality.13 The concept of belligerency in International Law deals with occurrences of civil war. Certain conditions of fact, arising during such armed conflicts, classically gave rise to recognition of belligerency. These facts include: the existence of civil war within a state, beyond the scope of mere local unrest; occupation by insurgents of a substantial part of the territory of the state; a measure of orderly administration by that group in the area it controls; and observance of the laws of war by the rebel forces, acting under responsible authority. 14 Traditionally, upon recognition of the status of belligerency, third party States assumed the obligations of neutrality regarding the internal conflict 15 and treated the two parties to the conflict as equalseach sovereign in its respective areas of control.16 Furthermore, upon recognition of their belligerency, insurgents were afforded important benefits but also responsibilities. Captured members of the rebel armed forces, as well as soldiers of the incumbent government, were entitled to prisoner of war status.17 Insurgent ships were admitted into the ports of recognizing States. These ships had the right to visit and search at sea. 18 Contraband could be confiscated and the ports of both parties to the conflict could be blockaded. 19 In fact, the conflict was viewed in terms of an international armed conflict rather than one that was internal and the humanitarian laws of
13 14

http://www.britannica.com/EBchecked/topic/59846/belligerency L. OPPENHEIM, INTERNATIONAL LAW: A TREATISE 249 (H. Lauterpacht ed., 7th ed. 1952) 15 PHILIP C JESSUP, A MODERN LAW OF NATIONS:AN INTRODUCTION 53 (1968); HANS KELSEN, PRINCIPLES OF INTERNATIONAL LAW 291 (1952). 16 LEE C. BUCHHEIT, SECESSION: THE LEGITIMACY OF SELF-DETERMINATION 39 (1978). 17 VON GLAHN, supra note 2, at 703; KELSEN, supra note 3, at 291 18 CHARLES G. FENWICK, INTERNATIONAL LAW 146 (3rd ed. 1948). 19 Id.

warfare became applicable to the hostilities.20 The recognition of belligerency was therefore of significance as it allowed the combatants and civilians affected by combat much wider protections than those granted to combatants and civilians during other internal armed conflicts.21 Historically, rebel groups seeking to overthrow a recognized government or to secede from a State have sought belligerent statusa legal standing akin to that accorded a government and bringing the law of international armed conflict into play for both sides. rebel group gained belligerent status when all of the following had occurred: it controlled territory in the State against which it was rebelling; it declared independence, if its goal was secession; it had well-organized armed forces; it began hostilities against the government; and, importantly, the government recognized it as a belligerent. In more recent times, however, governments have simply refused to grant recognition to groups rebelling against them. Governments are loath to admit that they have lost effective control of territory, nor are they anxious to grant legal standing to rebel groups. This refusal has serious legal and humanitarian consequences. Without belligerent status a government would not be bound to treat insurgents according to the law of international armed conflicts, thus often paving the way for savage and inhumane incidents. As a countermeasure, the international community has arranged for certain minimum standards of humanitarian law to be triggered by facts on the ground without waiting for governments to recognize belligerents or a state of belligerency. A confrontation is deemed to be an internal armed conflict when the fighting is intense, organized, and protracted enough to go beyond temporal disturbances and tensions dditionally, the conflict must be confined within a States borders and generally not involve foreign parties. As soon as the situation on the ground meets these criteria, parties are expected to conform to a distinct body of humanitarian law crystallized most notably in Common Article 3 of the Geneva Conventions of 1949 and in Additional Protocol II. These rules apply regardless of the legal standing of the parties. In effect, humanitarian law sidesteps entirely the sensitive issue of recognition.22

INSURGENCY

20

Richard A. Falk, Janus Tormented: The International Law of Internal War, in INTERNATIONAL ASPECTS OF CIVIL STRIFE 185, 205 (James N. Rosenau ed., 1964); COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949, 1321 (YVES SANDOZ et al. eds., 1987) [hereinafter PROTOCOLS COMMENTARY]. 21 https://www.jagcnet.army.mil/DOCLIBS/MILITARYLAWREVIEW.NSF/0/293cc04cc31b521f85256e5b0057758 a/$FILE/Volume166Lootsteen.pdf 22 http://www.crimesofwar.org/a-z-guide/belligerent-status/#sthash.e5yGLIOu.dpuf

As per Merriam Webster Insurgency can be defined as the quality or state of being insurgent; specifically: a condition of revolt against a government that is less than an organized revolution and that is not recognized as belligerency.23 Insurgency has existed throughout history but ebbed and owed in strategic signicance t times insurgency forms background noise to competition or conict between great powers t other times, it is strategically signicant, undercutting regional stability, drawing outsiders into direct conict, and spawning humanitarian disasters From a systemic perspective, the lower the chances of direct armed conict between great powers and the greater the tendency of major powers to sponsor insurgency as a form of surrogate conict, the greater the strategic signicance of insurgency When war between great powers is likely, insurgency may simmer on but becomes strategic background noise. Today the world has entered another period when sustained, large-scale conventional war between states is unlikely, at least in the near term. But mounting global discontent arising from globalization; the failure of economic development to keep pace with expectations; the collapse of traditional political, economic, and social orders; widespread anger and resentment; environmental decay; population pressure; the presence of weak regimes; the growth of transnational organized crime; and the widespread availability of arms are making insurgency common and strategically signicant This signicance is likely to continue for at least a decade, perhaps longer.24

DEFINITION AND CONCEPTUAL CONTEXT

Insurgency is a strategy adopted by groups which cannot attain their political objectives through conventional means or by a quick seizure of power. It is used by those too weak to do otherwise. Insurgency is characterized by protracted, asymmetric violence, ambiguity, the use of complex terrain (jungles, mountains, urban areas), psychological warfare, and political mobilization all designed to protect the insurgents and eventually alter the balance of power in their favor. Insurgents may attempt to seize power and replace the existing government (revolutionary insurgency) or they may have more limited aims such as separation, autonomy, or alteration of a particular policy They avoid battlespaces where they are weakestoften the conventional military sphereand focus on those where they can operate on more equal footing, particularly the psychological and the political. Insurgents try to postpone decisive action, avoid defeat, sustain themselves, expand their support, and hope that, over time, the power balance changes in their favor. In a broad sense, insurgencies take two forms.1 In what can be called national insurgencies, the primary antagonists are the insurgents and a national government which has at least some degree of legitimacy and support. The distinctions between the insurgents and the regime are
23 24

http://www.merriam-webster.com/dictionary/insurgency http://www.strategicstudiesinstitute.army.mil/pdffiles/pub586.pdf

based on economic class, ideology, identity (ethnicity, race, religion), or some other political factor. The government may have external supporters, but the conict is clearly between the insurgents and an endogenous regime. National insurgencies are triangular in that they involve not only the two antagoniststhe insurgents and counterinsurgentsbut also a range of other actors who can shift the relationship between the antagonists by supporting one or the other. The most important of these other actors are the populace of the country but may also include external states, organizations, and groups. The insurgents and counterinsurgents pursue strategies which, in a sense, mirror image the other as they attempt to weaken the other party and simultaneously win over neutrals or those who are not committed to one side or the other. The second important form is liberation insurgencies These pit insurgents against a ruling group that is seen as outside occupiers (even though they might not actually be) by virtue of race, ethnicity, or culture. The goal of the insurgents is to liberate their nation 3 from alien occupation. Examples include the insurgency in Rhodesia, the one against the white minority government in South Africa, the Palestinian insurgency, Vietnam after 1965, the Afghan insurgency against the Soviet occupation, Chechnya, the current Taleban/al Qaeda insurgency in Afghanistan, and the Iraq insurgency. The distinction between a national and a liberation insurgency is not always rigid and clear. A single insurgency can contain elements of both, and shift emphasis during its lifespan. The Chinese communist insurgency, for instance, began as a national insurgency, shifted to a combination of liberation and national during the Japanese occupation, and then shifted back to a national one. The Viet Cong/North Vietnamese insurgency in South Vietnam grew out of a liberation one, became more national in focus before extensive American involvement in the conict, again emphasized the liberation element from 1965 to the early 1970s, and then shifted back again.25

WHY IMPOSE HUMAN RIGHTS OBLIGATIONS OF NSAs

Human rights law was designed to curb the use of public power over those who are subject to that power. For this reason it applies first and foremost to the state, as the holder of public power.26 Criminal and civil law regulate the conduct of other legal actors under both domestic and international law. Thus, for example, individuals are not bound by the prohibition on arbitrarily denying the right to life, but by the penal prohibition on killing. 27 The almost exclusive attachment of human rights obligations to states is premised on two interrelated notions. One is that domestic law can effectively regulate action within a states jurisdiction Ordinarily, the state itself would have an interest in addressing human rights violations under its jurisdiction, making the intervention of international law unnecessary. The other notion is that

25 26

http://www.strategicstudiesinstitute.army.mil/pdffiles/pub586.pdf Nigel S. Rodley, Can Armed Opposition Groups Violate Human Rights?, in HUMAN RIGHTS IN THE T WENTY-FIRST C ENTURY: A GLOBAL C HALLENGE 297, 299 (Kathleen E. Mahoney & Paul Mahoney eds., 1993). 27 Id.

states would not accept international regulation of private entities.28 Since the emergence of the international human rights regime, however, the structure of domestic and international society has evolved and power relations have changed. NSAs have emerged that are increasingly wielding powers similar in character to those of states and often exceed the latter in their effectiveness. Insofar as such actors are empowered by the state, act according to its instructions, directions or control, or effectively replace it, the state is internationally responsible for those acts. The state is also responsible when it endorses the acts of NSAs.29 But NSAs often have the capacity to act beyond the control of states; it is sometimes the case that states have neither the interest in, nor the resources for, holding NSAs accountable under domestic law. Consequently, maintaining states as the exclusive holders of human rights obligations may lead to an inadequate guarantee of these rights. This realization has led to the development of new bodies of law establishing the accountability of NSAs for acts that essentially constitute violations of human rights; thus, some types of NSAs and individuals within them are already directly bound by certain international legal norms that essentially protect human rights, albeit under a different legal classification and in narrowly-circumscribed contexts. These norms include, first and foremost, international humanitarian law and international criminal law. However, the present framework of responsibility applicable to NSAs does not provide an adequate response to the full array of human rights that they may infringe upon. International humanitarian law, which applies to armed groups, covers only a small number of rights regarded as a minimum core that can (and must) be complied with in any situation; naturally, international humanitarian law applies only during armed conflict. International criminal law imposes criminal responsibility on individuals for acts that violate human rights, such as genocide, crimes against humanity, and certain violations of the laws of armed conflict, but because it constitutes the most severe type of sanctions, international criminal law is limited to the gravest human rights violations.6 Consequently, NSAs that exercise powers similar to those of states often remain unaccountable for their abuse of that power because their conduct does not amount to international crimes and is not related to an armed conflict. There is, therefore, a need to bridge the gap between the extensive powers of NSAs and the limited forms of responsibility that apply to them at present by extending the reach of international human rights obligations. Yet states are reluctant to attribute human rights obligations to NSAs under international law, or, for that matter, under domestic law. 30 First, states are generally loath to extend any international law to such entities, as such extension could

28

Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 Yale L.J. 443, 466, 469 (2001). 29 Intl Law Commn, Draft rticles on Responsibility of States for Internationally Wrongful cts, with Commentaries, 53d Sess., arts. 36, 4244, U.N. Doc. A/56/10; 56 U.N. GAOR Supp. No. 10 (2001). 30 Mohamad v. Palestinian Authority, 132 S. Ct. 1702 (2012).

in some instances further the latters endeavors to acquire international status.31 Second, as a matter of fact, human rights ordinarily constitute domestic matters. Even if states have accepted that legally human rights are no longer exclusively a domestic issue because of the insufficiency of domestic law to guard the victims, in practice international intervention, legal or otherwise, is still disfavored The regulation of states human rights obligations by international law remains the exception to the primacy of regulation by domestic law. The tension between the need to regulate the conduct of NSAs that are beyond the effective reach of states and the reservations regarding attaching human rights obligations to NSAs is evident in the debate on corporate liability for human rights violations. Great strides have been made in the development of corporate accountability for human rights, but consensus was reached on the adoption of Guiding Principles on Business and Human Rights only on the understanding that any corporate responsibility stems from societal expectations rather than human rights law. An example of the objection to entrenching corporate responsibility in human rights law is the failed attempt in the United States in Kiobel v. Royal Dutch Petrolium Co. to recognize civil corporate liability under the U.S. Alien Tort Statute, although state practice is far from uniform. Nonetheless, one can perceive of some instances in which states might be willing, if not eager, to recognize the applicability of human rights obligations to NSAs. States might be willing to do so in situations where such applicability would exempt the states themselves from responsibility. This means of evading responsibility may become increasingly attractive as a counterweight to the growing phenomenon of holding states responsible for failure to prevent conduct which amounts to human rights violations by NSAs over which they exercise some control.

REFERENCES 1. www dcaf ch content download 53925 812465 file NS Final pdfhttp://www.icrc.org/eng/ assets/files/other/what_is_ihl.pdf 2. http://www.strategicstudiesinstitute.army.mil/pdffiles/pub586.pdf 3. http://accelus.thomsonreuters.com/sites/default/files/GRC00406.pdf 4. http://www.manupatra.co.in/newsline/articles/Upload/9E421587-72AB-4936-9CB92A9ECA0E93EA.pdf 5. http://www.merriam-webster.com/dictionary/insurgency

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Beate Rudolf, Non-State Actors in Areas of Limited Statehood as Addressees of Public International Law Norms on Governance, 4 H UM. RTS. & INTL LEG L DISCOURSE 127, 128 (2010)

6. https://www.jagcnet.army.mil/DOCLIBS/MILITARYLAWREVIEW.NSF/0/293cc04cc31b5 21f85256e5b0057758a/$FILE/Volume166Lootsteen.pdf 7. http://www.britannica.com/EBchecked/topic/59846/belligerency 8. http://www.crimesofwar.org/a-z-guide/belligerent-status/ 9. http://journals.cambridge.org/action/displayAbstract;jsessionid=33F839DE93F745AA11EC3 E8E99DDCFE1.journals?fromPage=online&aid=5979740