Compliance with IHL by Non-State Armed Groups: Some Practical Reflections at the 70th Anniversary of the 1949 Geneva Conventions

That non-State armed groups (NSAGs) engage in hostilities on a frequent basis is not news. Indeed, NSAGs are active in the majority of contemporary armed conflicts (at 19). What seems to have changed in the last few years is the increasing attention that the international community is paying to their behavior, largely due to the impact that they have on civilians. While it is undisputed that international humanitarian law (IHL) binds NSAGs (para 505), finding effective strategies to enhance their level of compliance remains challenging, especially considering that the baseline expectation is generally low (at 69).

Interestingly, while some NSAGs have been responsible for IHL violations, others have also shown a degree of compliance for certain rules during non-international armed conflicts (NIACs). As this year marks the 70^th anniversary of the four Geneva Conventions of 1949, some reflections related to how parties to armed conflicts – in this case, NSAGs – actually behave are in order.

Describing NSAGs’ Variations

Generally, compliance has been defined as “behavioral conformity with existing norms and regulations” (at 65). For NSAGs, this implies the observed match between their behavior and their international obligations.

As parties to armed conflicts, NSAGs should not be seen as entities that either violate or respect international law without exception. Instead, they may follow certain rules while disregarding others. For instance, a NSAG may respect the prohibition of using and recruiting children in hostilities, but may summarily execute detainees or take hostages. Similarly, a group may deliberately attack health care facilities and transports in breach of IHL, while prohibiting the forcible displacement of civilians. At the same time, these non-State entities often modify their behaviors throughout the hostilities, reflecting and increase or decrease in their level of compliance with humanitarian norms. Wood has identified that civilian victimization is “anticipated during moments in which the viability of the groups is threatened or when it faces significant military setbacks” (at 15). Variation is particularly evident during peace processes (here, for an example). When a NSAG looks for political recognition, it might adopt a different attitude than a group whose main purpose is to show its strength or to terrorize the civilian population living in the territory it controls.

Accordingly, compliance with IHL should be conceived as a spectrum, rather than an on/off switch. As such, NSAGs’ behaviors are better understood as “a matter of degree varying with the circumstances of the case” (at 5). This conclusion acknowledges that while some groups have deliberately attacked, for instance, medical personnel and facilities, others have attempted to evacuate and treat wounded enemy fighters and civilians. Some groups have even facilitated and provided for education. NSAGs should therefore be seen as dynamic and evolving actors. Like States, NSAGs may weigh the costs against the benefits of complying with international law (at 59). The results will indeed vary depending on the goals of the group and the moment in which its behavior takes place.

Understanding that NSAGs do not have the same approach to every rule throughout the conflict is essential, for example, for humanitarian organizations when defining their strategies of IHL engagement with these groups.

Some Specific Challenges Related to NSAGs

While important, identifying this behavioral variation still remains superficial. In NIACs, compliance by NSAGs with specific rules can be linked to several factors, such as the group’s lack of knowledge of international standards and the absence of an incentive to abide by the applicable rules (at 20). Bangerter has correctly noted that “only a relatively small circle of persons are aware of legal concepts in any given society, and it is unlikely that leaders of armed groups will be recruited in this particular circle” (at 113; see also here at 12). NSAGs may not know, for instance, “norms prohibiting the recruitment of children as soldiers, or the outlawing of certain weapons […] Concepts familiar to military lawyers or IHL specialists, such as the principle of proportionality in the conduct of hostilities, may also not be well understood by members of [NSAGs], both at senior and at lower operational levels” (here, at 44).

Their lack of incentive to respect certain IHL rules might result from a complex mixture of diverse motivations. Power relations, as well as historical, political, and social conditions, serve to determine these motivations, making compliance for these rules a context-dependent issue (at 4-5). Furthermore, some humanitarian norms can be perceived as prohibiting actions that “often serve the strategic interests of rebel groups – the sort of actions that may, at times, give them a competitive advantage over government forces” (at 6).

Alternative reasons stem from the lack of appropriate organizational structures and resources, allowing NSAGs to acknowledge, understand and implement some of their obligations. Many groups, in particular those with a low level of organization, a fragmented structure or with decentralized authorities, have less potential to implement specific obligations. Exchanges between Geneva Call and different groups have confirmed that their lack of capacity is a key aspect when attempting to comply with at least certain rules of international law. Furthermore, the very structure and rationale of some NSAGs challenge the likelihood of respecting some obligations, as these entities are created to perform combat functions, thus devoting large amount of their resources to their military components.

Finally, Jo has identified NSAGs’ lack of participation in international law-making process as a challenge for inducing them to comply with IHL: “Nor they have ever been signatories to international treaties and conventions, such as the Geneva Conventions. Why would rebel groups follow rules that neither created nor signed on to?” (at 6).

Compliance with IHL by NSAGs: Why this may take place?

Different explanations have been proposed to address the reasons why NSAGs respect IHL. Generally, for certain authors, legitimacy-seeking groups are more likely to comply with international law than legitimacy-indifferent groups (here and here). Three possible indicators have been used to explain this: i) the existence of a political wing within the NSAG; ii) a secessionist aim with a clear governance objective in an autonomous region; and iii) foreign support under the influence of humanitarian norms (at 93). Stanton has followed a similar line by affirming that restraint is often a deliberate strategic choice by certain NSAGs, “who avoid direct attacks on civilian populations and aide by international legal standards of behavior in an effort to win support from domestic and international audiences” (at 7). The ICRC, in its recent Roots of Restraint in War, has added that NSAGs could also respect international law due to mechanical factors. Attacks against the civilian population, for instance, might decrease because of the “mass desertion of fighters, the disruption of weapon supplies, or seasonal weather” (at 19).

Accordingly, either willingly or unwillingly, NSAGs make a cost-benefit calculation on whether to comply with international law or not, and this will vary depending on the aims and capacity of the group in question at a given moment.

Compliance of IHL by NSAGs: Some Examples

Although it may be said that “armed groups are not very popular entities in today’s world, especially among states which invariably label them as terrorist”, and that some of them have indeed, at a given moment of a conflict, breached some of their international obligations; certain cases show that NSAGs may also show some degree of commitment for international law. In a positive step towards showing that IHL is actually respected, the ICRC is currently compiling real life instances of compliance with the applicable law by States and NSAGs.

Several groups have also publicly committed to respect IHL through different public means, such as unilateral declarations, codes of conduct and agreements with other parties and humanitarian organizations. Geneva Call has a public database which contains more than 500 commitments made by almost 230 NSAGs from 60 countries. Two particular examples can be referred to in this sense. First, NSAGs have currently the opportunity to sign the so-called “Action Plans” with the UN, leading to the groups being successfully delisted from the UN Secretary General’s list of actors that commit one or more of five grave violations of children’s rights (as denial of humanitarian access to children does not trigger the listing process). To date, 17 NSAGs have signed these agreements, committing to respect not only IHL but also some international human rights law obligations (at 10) (for examples included in the abovementioned database: here and here). Importantly, certain groups have actually been delisted following compliance with this tool, such as the Moro Islamic Liberation Front (MILF) from the Philippines.

Second, Geneva Call has worked to enhance compliance by NSAGs, by acknowledging these groups as key actors to solve problems related to the implementation of international law in armed conflict. Since the 1997 Ottawa Convention does not formally bind NSAGs, Geneva Call developed an innovative tool that would allow them to commit to this treaty’s core obligations: the Deed of Commitment for Adherence to a Total Ban on Anti-Personnel Mines and for Cooperation in Mine Action. Since then, three additional documents have been developed: the Deed of Commitment for the Protection of Children from the Effects of Armed Conflict in 2010, the Deed of Commitment for the Prohibition of Sexual Violence in Situations of Armed Conflict and towards the Elimination of Gender Discrimination in 2012, and the Deed of Commitment for the Protection of Health Care in Armed Conflict in 2018. By recognizing the importance of NSAGs’ consent to international obligations, this process aims at creating a sense of ownership over the humanitarian rules they undertake to respect and to be held accountable for in their pledge. As of 2019, it has engaged with approximately 120 NSAGs on different humanitarian issues and 64 have signed one or more thematic Deeds (for examples of these commitments, here, here and here).

Of course, when dealing with compliance by NSAGs important challenges remain. A number of groups indeed reject international law, or some of its rules, for ideological, military or other reasons, and engaging them can be a difficult task. In any case, when analyzing their behaviors, it is essential to understand that while they may breach certain obligations, on multiple occasions NSAGs have shown their commitment to and compliance with many humanitarian rules. Focusing on specific norms, and whether they are respected or not, can therefore be helpful when assessing compliance in armed conflicts. In a world in which IHL as an effective legal regime is challenged from different quarters, the value of acknowledging that rules are actually respected seems to be more important than ever.   

Author’s note: The views expressed here are the author’s own and do not necessarily reflect those of Geneva Call.