Common Article 3 of the 1949 Geneva Conventions binds the parties to non-international armed conflicts (NIACs) without making any distinction between the obligations of States and those of armed opposition groups (AOGs). Additionally, it encourages the parties to expand their obligations by concluding special agreements in order to bring other provisions of the GCs into force. These agreements’ importance has been recognized here by the ICRC, when identifying them as valuable methods to improve respect of IHL. In a recent post in Opinio Juris, Rogier Bartels has mentioned some contemporary peace agreements which could potentially also be framed within that category. However, CA3 doesn’t really determine their legal nature. Are they regulated by international or domestic law? What kind of obligations do they create?
Unraveling these questions isn’t merely an intellectual exercise. Special agreements serve to strengthen public confidence in IHL as a useful, practical and relevant body of law. Indeed, they help achieve willingness and material conditions to augment AOGs’ compliance. Whatever approach one selects, it will inevitably have consequences on the way we think about IHL’s effectiveness at large.
This post will analyse three alternatives regarding the legal nature of special agreements: i) special agreements under domestic law; ii) special agreements under a sui generis regime; iii) special agreements under international law. We will argue that this last perspective provides a more accurate description of the current dynamics of international law and is more useful to engage with AOGs on IHL compliance issues.
This alternative proposes that special agreements are governed by domestic law, since AOGs don’t have a recognized ability to create international rules. The role of creators is exclusively reserved for States (or for those who States acknowledge the same capacity), so AOGs are only plain recipients of IHL rules. This perspective was supported by the Constitutional Court of Colombia when it affirmed here that such agreements aren’t treaties because they aren’t created between subjects of international law, but by parties to a NIAC, mere subjects of IHL. The same view was affirmed here by the Special Court for Sierra Leone.
Certainly, this position must be read together with the final phrase of CA3, which affirms that the article “shall not affect the legal status of the Parties to the conflict”. This has been understood as a denial to recognize that they have any “new international status, whatever it may be and whatever title it may give itself or claim” (Commentary to GC III), and it reflects the idea of AOGs’ legal personality being strictly limited to IHL.
But what are the practical consequences of this view? It is quite likely that States could legislate to unilaterally alter or terminate special agreements, without any consideration whatsoever of the AOGs’ position on the negotiated issues. Moreover, in terms of responsibility, possible breaches (by States or by AOGs) wouldn’t have any consequences at the international level. Thirdly, and most importantly, an argument could be made denying their validity in most national regimes, where they could be void given AOGs presumptively unlawful domestic character. This would completely exclude their effet utile. Consequently, these possibilities appear to weaken the equality of the belligerent parties to a NIAC, making it more difficult to achieve greater levels of compliance on the side of AOGs. In sum, it seems to render IHL less effective.
A sui generis regime
Sassòli suggests that AOGs may develop amongst themselves a new species of transnational law, the lex armatorum, just as it has happened in other international fields dominated by non–State actors. Thus, AOGs would have the capacity to create a new legal regime, by its nature neither domestic nor international, but something in between. Rondeau has praised this idea here because it addresses “practical gaps that rendered existing law impractical and unrealistic for those key non–state actors”. Certainly, this new perspective challenges the state–centric doctrine of international law.
However, Sassòli has also recognized certain difficulties in the very nature of AOGs and their interactions. They have common interests, but also different structures. And they don’t fight worldwide against each other, but in restricted geographic vicinity, most frequently against governments “whom it would be difficult to subject to the new lex armatorum”.
We believe there are even stronger reasons to reject this alternative. Mainly, it doesn’t seem to describe what is actually happening. Indeed, amidst the reasons why AOGs conclude them is to achieve some political recognition from States in the realm of international law, or to express their intention to abide by these specific rules, probably expecting the others to do the same. The creation of a new regime which is separate from international law could be deemed contradictory to this purpose, since the notion of lex armatorum seems to leave out State involvement, focusing on agreements between AOGs. Also, considering these agreements as part of a lex armatorum could be inconsistent because their content –far from evidencing that States or AOGs seek the creation of a new legal regime– usually refers to existing rules of international law.
In sum, the benefit of this approach is the recognition of AOGs’ relevance in the design and implementation of IHL. Nevertheless, it fails to describe the actual practice concerning the conclusion of special agreements, thus probably entailing effectiveness problems. Would AOGs really get involved in agreements which do not provide them some legitimacy or mutual compliance? Would States accept a new legal regime that leaves them as actors in a supporting role?
Finally, it is proposed that special agreements are regulated by international law and create obligations between their parties in international law. Facing the abovementioned problems, we believe that this perspective properly describes the parties’ intentions when concluding these agreements and still recognizes AOGs’ relevant role in their design (restraining States from unilaterally altering them).
Generally speaking, this approach is based on the principle of “equality of belligerents”, thus attempting to enable greater levels of IHL effectiveness in the context of NIACs. This notion entails that all parties to the conflict have the same rights and obligations regardless of their cause. We agree with those who argue that this principle entails that AOGs’ practice can also be taken into account for the creation of IHL, as e.g. Somer and Sassòli. Special agreements seem to follow that logic: they tend to impose matching rights and obligations to all the signatories, and the process through which they are usually created leads to recognize each party’s equal capacity to take every necessary step to conclude them. However, the problem seems to lie essentially in their inclusion within some legal category as a source of international law.
Can special agreements be considered as international treaties? Article 3 of the VCLT affirms that there may be international agreements outside its scope. In fact, a broad definition, such as the one included in the 1962 ILC draft of Article 1, might enable the inclusion of special agreements within that category, since it provided their conclusion not only by States, but also by other subjects of international law. Draft Article 3 expressly recognized that capacity to some insurgent communities.
However, broad definitions still usually require treaties to be concluded by subjects of international law. Then, when faced with the impossibility to affect the parties’ legal status enshrined in the final sentence of CA3, we seem to be left with two options: i) to affirm that special agreements aren’t international treaties because AOGs don’t have the capacity to conclude the latter, and because holding the contrary would modify their legal status; ii) to accept that AOGs have a limited international legal personality which allows them to conclude only the agreements referred to by CA3 and only to the extent they concern IHL. There is a practical problem in the second alternative, since special agreements sometimes include provisions which could be identified as belonging to other legal regimes, such as IHRL. Thus, they would still fall beyond the scope of the abovementioned criteria.
Facing these complexities, it might be a good idea to seek for other alternatives. Could it be claimed that AOGs take part in the process of creating rights and obligations through an atypical source of international law? We propose a scheme which allows us to avoid entering the maze of CA3’s last sentence. Special agreements usually have the ultimate objective of enhancing the protection of individuals affected by NIACs. Therefore, we believe that the capacity of AOGs cannot be over–limited by the final part of CA3. A comprehensive interpretation of this protective goal should be fulfilled without entailing a modification of the parties’ legal status.
A realistic approach leads us to focus on the entities involved in the norm creating process. Precisely, Higgins (Problems & Process. International Law and How We Use it) discards the notions of “subjects” and “objects” of international law, and posits instead that all international players are relevant in the context of the legal decision–making process (a continuing process of authoritative decisions), where participants create rights and obligations.
When applying this to IHL, Ryngaert points out that to date only State practice is taken into account. He even claims that accepting AOGs’ participation in the norm creation process might lead to a less protective outcome, since they may not be keen to respect humanitarian rules (“Non–state actors in international humanitarian law”, in D’Aspremont [ed.] Participants in the International Legal System. Multiple perspectives on non–state actors in international law). These difficulties would have to be dealt with, but we would like to emphasize one of this author’s main contentions: “it can hardly be denied that willingness to comply on the part of an actor is crucially dependent on the perception of it having consented to, or at least of having participated in, the formation of the law by which one is bound”.
In short, it all comes down to a matter of IHL effectiveness. This approach allows us to substantially modify the way we refer to special agreements, framing them as international legal rules created in a continuous legal decision–making process, by various stakeholders (governments or AOGs). This would avoid the theoretical problem concerning the AOGs’ legal status, for it is no longer necessary to the subjectivity issues. Finally, we can start thinking of special agreements in terms of the international rights and obligations they create, without having to label them as any of the classic sources of international law.