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Article Excerpt
I. INTRODUCTION
II. INTERNATIONAL HUMANITARIAN LAW AND THE REGULATIONS OF ARMED CONFLICTS III. CHARACTERISTICS OF NON-INTERNATIONAL AND INTERNAL CONFLICTS A. LEGAL CHARACTERIZATIONS B. CONTEXT SPECIFIC DIFFERENTIATIONS OF LEGAL NORMS APPLICABLE TO NON-STATE ACTORS 1. Wars of National Liberation and Regime Change 2. Conflicts of an International Character Involving Non-State Actors on the Side of State Actors 3. Non-State Actors in Non-International Conflicts 4. Doctrinal and Jurisprudential Efforts Addressing Overlaps IV. THE CULTURE OF WAR IN NON-INTERNATIONAL AND PURELY INTERNAL CONFLICTS: ITS METHODS, MEANS, AND THE IMPACT ON COMPLIANCE AND NON-COMPLIANCE A. THE NEW CULTURE OF WAR B. THE MILITARY STRUCTURE AND THE STRATEGY OF VIOLENCE AND TERROR VIOLENCE BY NON-STATE ACTORS C. NON-STATE ACTORS AS STATE SURROGATES D. FINANCING, FUNDING AND ARMING OF NON-STATE ACTORS E. THE POLITICS OF HATE V. FACTORS ENHANCING AND DETRACTING FROM COMPLIANCE WITH IHL A. CLAIMS OF LEGITIMACY B. ASYMMETRY OF FORCES C. POSITIVE INDUCEMENT FACTORS D. VALUES AND BEHAVIOR E. CRIMINOLOGICAL FACTORS-- COMPLIANCE/DETERRENCE ISSUES IN IHL F. POLITICAL CONSIDERATIONS: THE POLITICAL QUICK FIX IN ENDING CONFLICTS VI. CONCLUSIONS AND RECOMMENDATIONS
I. INTRODUCTION
Since the end of World War II, an estimated 250 conflicts have taken place on almost every continent in the world, resulting in estimated casualties ranging from seventy million to 170 million, most of whom were non-combatants, (1) Almost no region of the world has been spared the human and material devastation resulting from violations of International Humanitarian Law (IHL) (2) by state as well as non-state actors, notwithstanding the fact that such violations are contrary to the professed fundamental values and beliefs of most of those engaged in these conflicts. (3)
A number of research organizations, including the Carnegie Endowment for International Peace, SIPRI, PIOOM, International Human Rights Law Institute, and others, have attempted to identify the number of conflicts of a non-international character and the level of victimization that has resulted in these conflicts. (4) These research projects, however, seldom distinguish between groups of non-state actors who engage in armed conflicts that are legally characterized as international, non-international, or purely internal armed conflicts. (5) A number of legal consequences derive from these characterizations that impact on compliance with the norms of IHL, and in turn affect the levels of victimization occurring in these conflicts.
After World War II, the culture of war changed and a new generation of means and methods of warfare emerged, which extends until now. This development raises questions about the continued validity of classic assumptions underlying what is interchangeably called the Law of Armed Conflict, the Laws of War, and International Humanitarian Law. The invalidation by the new wars of the assumptions raises the question of whether these "laws" are still relevant. (6)
Three factors command consideration with respect to compliance by non-state actors. The first is that non-state actors in conflicts of a non-international or purely internal character are almost always in an asymmetrical relationship to the strength and resources of the governments that they oppose. This asymmetry puts them at a military disadvantage that precludes them from fighting a significantly more powerful opponent with the same limitations on means and methods of warfare. In fact, this asymmetry compels them to resort to unconventional and unlawful means and methods of warfare as the only way to redress the military and economic imbalance they face. Without sufficient incentives for non-state actors to comply with IHL, the asymmetry of power mentioned above necessarily leads to non-compliance. The second factor is that unlike conventional armies, non-state actors operate as militias or bands with little or no military training, little or no command and control structure, and little or no internal discipline or other system of social control likely to enhance compliance. The third factor is that non-state actors have no expectation of accountability for their non-compliance. Combined, all three factors, coupled with whatever other contextual political factors that may exist in a given conflict, make voluntary compliance by non-state actors aleatory. (7)
Non-international and internal conflicts since World War II evidence the participation of a wide range of groups that had not historically participated in armed conflicts, (8) the latter having been the monopoly of states (9) and thus essentially involving conventional armies. (10)
The term non-state actor is applied to non-governmental groups who directly or indirectly engage in support of non-governmental combatants in non-international and purely internal conflicts. These groups take a variety of forms, including:
(1) Regularly constituted groups of combatants with a military command structure and a political structure; (11)
(2) Non-regularly constituted groups of combatants with or without a command structure and with or without a political hierarchical structure;
(3) Spontaneously gathered groups who engage in combat or who engage in sporadic acts of collective violence with or without a command structure and with or without political leadership;
(4) Mercenaries acting as an autonomous group or as part of other groups of combatants; and
(5) Expatriate volunteers who engage for a period of time in combat or in support of combat operations, either as separate units or as part of duly constituted or ad hoc units. (12)
These groups also include dual-purpose groups that engage in combat, as well as pursue other activities relating to their cause. (13) This includes: (1) members of political parties who occasionally engage in combat and sometimes in acts of violence, which constitute violations of IHL; and (2) members of organized crime groups or groups pursuing criminal purposes while active in armed conflicts and commit violations of IHL.
The major issues discussed in this Article, although not presented in the following order due to significant overlap, are:
* Whether the new culture of war and its means and methods in conflicts of a non-international character and purely internal character, necessarily engender greater violations of IHL, and thus whether IHL is relevant to this new culture of war and can be assumed to induce compliance with its norms;
* Whether the asymmetry of power between non-state and state actors engaged in conflicts of a non-international or purely internal character is an insurmountable impediment to compliance with IHL by non-state actors;
* Whether there is sufficient experiential data arising out of the conflicts that have taken place since World War II to identify and assess the factors that enhance or detract from IHL compliance by non-state actors; (14)
* To what extent do double standards by states contribute to the reduction of compliance by non-state actors;
* The degree to which enforcement of IHL norms constitutes deterrence and thus positively impacts on individual and collective compliance, and mutatis mutandis, whether non-enforcement engenders enhanced noncompliance;
* Whether among state and non-state actors there is a correlation between actual conduct in the field and their harmful outcomes on the one hand, and proclaimed values and declared adherence to the Rule of Law on the other; and
* Whether the multiplicity of applicable legal regimes, their confusing overlaps, their normative gaps, and their rigid legal characterizations contribute to both non-compliance and non-enforcement. (15)
The above-mentioned factors and others discussed in this article have a significant beating on the non-compliance with IHL by non-state actors in conflicts of a non-international or purely internal character; and whether non-compliance has reached a crisis proportion that requires a reexamination of the validity of the assumptions underlying compliance expectations. The proposition discussed below is how to reduce the harmful human consequences produced during these conflicts by increasing the levels of individual and collective compliance with IHL. (16) This requires assessing the new culture of war and its means and methods, appraising the factors leading to or detracting from compliance, and reviewing the applicable law and its enforcement, particularly as regards the dual standards employed by major states whereby their non-compliance with IHL becomes the de facto accepted exception. (17)
Although empirical data about factors concerning individual and collective compliance with IHL by non-state actors is limited, anecdotal data is available to illustrate the issues raised herein. In this area, past experience is unfortunately more than merely illustrative, it is shockingly telling.
It should be noted that there are also a number of major gaps in ICL with respect to non-state actors. For example, both the Genocide Convention and the Convention Against Torture apply to state actors. Crimes against humanity has not yet been embodied in a separate international convention and, under customary international law, applies to state actors, even though it would be clearly desirable to also have it apply to non-state actors. There is therefore much need to develop ICL and to fill the gaps contained therein with respect to non-state actors as there is with respect to IHL. (18)
There is also the need to clarify the applicability and enforcement mechanisms of IHRL in connection with non-state actors.
II. INTERNATIONAL HUMANITARIAN LAW AND THE REGULATION OF ARMED CONFLICTS
IHL is the body of norms that regulates the conduct of those who are involved in armed conflicts. (19) It includes the prohibition of certain ways and means of warfare and the prohibition of certain weapons. More importantly, it is designed to protect certain categories of persons and property from harm. Although these prohibitions and limitations are based on different legal sources, they apply during the course of armed conflicts whether of an international or non-international character. They extend the same protections to civilians irrespective of the legal characterization of the conflict. However, they do not extend the same rights and privileges of combatants to those engaged in combat on the side of insurgents or belligerents in conflicts of a non-international and purely internal character. (20) Enforcement of these norms depends on the legal characterization of the given conflict. Thus, in conflicts of an international character, the more serious violations of these norms are criminalized under the label of "grave breaches" of the Geneva Conventions and as war crimes when these violations occur under customary IHL. (21) For these violations, states have, inter alia, the obligation to criminalize, prosecute, punish, and extradite. However, in conflicts of a non-international character, the same depredations are called "violations" and the obligations of states described above are not necessarily applicable in the same manner. As to purely internal conflicts, none of the above applies, as only domestic law is deemed applicable.
International and domestic law do not always converge with respect to the laws and customs of war. The national laws of almost all countries address the regulation of armed conflicts as part of their internal military law, reflecting the obligations of international law. In addition, national military laws contain other provisions concerned with the way their military are expected to function. But IHL as codified in these laws is seldom reflected in national criminal laws applicable to those who are not part of the armed forces. Nevertheless, the values of national societies have impacted the laws and customs of war in the international context even though the values reflected in IHL are found in humanitarian principles, principles that have evolved in different civilizations over the past five thousand years. (22) In time, these humanitarian principles formed an interwoven fabric of international principles, norms, and rules of conduct designed to prevent certain forms of physical harm and hardships from befalling certain persons. Protected individuals include civilian noncombatants, those hors de combat such as the sick, wounded, shipwrecked, prisoners of war, those covered by the Red Cross and Red Crescent emblems, and those who provide medical and humanitarian assistance in the course of armed conflicts. (23) These norms also extend to protected targets, such as civilian installations, hospitals, religious and cultural monuments, and cultural artifacts. (24) These protections are embodied in IHL in certain enunciated principles and are also contained in specific norms. Irrespective of whether these international legal principles and norms are absorbed in national laws, international law provides for obligations applicable to states.
The interplay between international and national law is particularly evident in the areas of individual criminal responsibility and the international responsibility of states for wrongful conduct. Thus, individual violators of these norms are subject to disciplinary and criminal sanctions depending upon the seriousness of the violation by the state of nationality, but also by any other state under the principle of universal jurisdiction for "grave breaches" as defined in IHL and as war crimes under customary international law. Moreover, states whose personnel have committed such violations may owe compensatory and even punitive damages to the state whose nationals have been victimized. (25) The foregoing, however, applies mainly to conflicts of an international character, as these protections and prohibitions are not necessarily applicable to conflicts of a non-international and purely internal character. (26) In these contexts, international human rights law and international criminal law apply, subject to the reservations noted in the conclusion of Section I.
The sources of IHL norms are conventional and customary international law, commonly referred to respectively as "the Law of Geneva" (for the conventional law of armed conflicts) and "the Law of The Hague" (for the customary law of armed conflicts). (27) The Law of The Hague is not, however, exclusively customary law because it is in part made of treaty law, and also because treaty law has become part of customary law. (28) In turn, the Law of Geneva is not exclusively treaty law, because it reflects customary law. (29) Thus, the traditional distinction between conventional and customary law has been substantially eroded. (30) Additionally, the treaty law that applies to weapons control derives from customary, as well as conventional, law and some of its specific norms have become part of customary law. (31)
In the last half-century, the term international humanitarian law initially denoted the protections and obligations arising out of the 1949 Geneva Conventions, (32) whose origins were the 1864 Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. (33) Subsequently, the term has been broadened to encompass all violations of the laws of armed conflict, whether they are contained in the 1949 Geneva Conventions and the two 1977 Additional Protocols or in customary international law as first reflected in the 1899 and then in the 1907 Hague Convention IV and its Annexed Regulations (1907 Hague IV), or that body of conventional and customary international law applicable to armed conflicts in connection with the protection of cultural property (34) and the prohibition of use of certain weapons. (35)
The four Geneva Conventions of 1949 and their Protocol I are the principal instruments of IHL that govern conflicts of an international character. (36) Common Article 3 of the four Geneva Conventions of 1949 (Common Article 3) and Additional Protocol II of 1977 (Protocol II) are the principal instruments applicable to conflicts of a non-international character. (37) The four Geneva Conventions of 1949 and parts of Protocols I and II are deemed part of customary international law. (38) But these norms do not apply to purely internal conflicts, in which non-state actors are subject only to the criminal laws of the state in whose territory the conflict occurs and to applicable international criminal law norms, such as those pertaining to genocide and crimes against humanity. (39) Moreover, these non-state actors who are de facto, but not de jure combatants in such conflicts, and who are therefore deemed criminals under the national laws of the state where the conflicts occur, have no specific protection under IHL, other than vague and general exhortations contained in Common Article 3 and Protocol II. (40) In short, non-state actors fight "in a twilight zone between lawful combatancy and common criminality." (41)
The International Committee of the Red Cross (ICRC) defines IHL as the body of rules that protects people during wartime who are not or are no longer participating in the hostilities. (42) Its central purpose is to limit and prevent human suffering in times of armed conflict. (43) The rules are to be observed not only by governments and their armed forces, but also by belligerent groups and any other parties to a conflict, whether they are state or non-state actors. (44)
Certain principles and norms contained in the Geneva Conventions derive from customary international law (45) and, as stated above, extend to the protection of cultural property (46) and the prohibition of the use of certain weapons that are regulated by specific treaties. (47)
After World War II, crimes against humanity emerged out of war crimes, but remained connected thereto. (48) In 1950, the International Law Commission declared crimes against humanity to be unrelated to war crimes, and they became a separate category of international crimes, applicable in times of war and peace. (49) In 1948, the Genocide Convention (50) defined the new international crime of genocide, which is also applicable in both war and peace. (51) Genocide and crimes against humanity, as well as war crimes, are deemed jus cogens international crimes, nevertheless there are questions about whether or not genocide and crimes against humanity apply to non-state actors. (52)
The evolution of IHL norms in both customary and conventional international law evidences the tension between humanitarian values and states' interests. Proponents of the former have sought to expand the protective scope for persons and non-military targets, as well as impose limits on the use of force and the use of certain weapons. Proponents of the latter have resisted this trend and pushed in the opposite direction by carving out exceptions, such as the doctrine of "military necessity," and by leaving certain areas ambiguous, such as the limits on military bombardments and the use of certain weapons. (53)
The humanization of armed conflict has been difficult, because traditionally the pursuit of war has been to achieve military success through the fastest, most effective means and with the least costs to the protagonist, irrespective of the harm inflicted upon the enemy. Humanitarian arguments alone have seldom been a sufficient basis to induce states to altruistically limit the use of their might against their enemies, particularly against those who are incapable of reciprocating similar harm. Pragmatic and policy arguments, however, have greatly aided the development of IHL. (54) Mutuality of interest and other pragmatic policy considerations have combined with humanitarian concerns to produce a body of norms and rules of conduct that carry in them the expectations of voluntary compliance. But where mutuality of interest and pragmatic considerations do not exist or do not weigh in the scales of the cost-benefit analysis, voluntary compliance diminishes or disappears. Last but not least, it must be underscored that the IHL protective scheme has gaps, overlaps, and ambiguities, (55) which provide escape hatches for states unwilling to enforce IHL.
The two sources of IHL, namely customary and conventional international law and their respective legal sub-regimes as described below, not only overlap and have gaps, they also exhibit an unfair imbalance between rights and protections depending on the legal characterization of the type of conflict. Thus, a person who would otherwise qualify as a lawful combatant in a conflict of an international character becomes a common criminal in a conflict of a non-international character and in an internal conflict. This unfair imbalance is, by deduction, a factor affecting voluntary compliance by non-state actors.
The regulation of armed conflicts exists either under customary or conventional international law. For example, the "Law of the Hague" and the "Law of Geneva" are also divided according to the legal characterization of the types of conflict, namely, conflicts of an international and non-international character. (56) Thus, these two sources of law have in effect created two sub-legal regimes within the overall regime of the Law of Armed Conflict. The 1907 Hague IV Convention and its Annexed Regulations apply only to conflicts of an international character, namely conflicts between states, (57) as do the Four Geneva Conventions of 1949, (58) and Additional Protocol I but with a sub-regime applicable to conflicts of a non-international character contained in Common Article 3. (59) Protocol II deals exclusively with conflicts of a non-international character. (60) Common Article 3 is deemed part of customary international law. (61) Only some aspects of Protocol II are however deemed customary international law, thus leaving open for conjecture what is and what is not binding under customary international law. (62) Purely internal conflicts are not covered by any of the regimes.
The inequities created by these multiple regimes are reflected in the fact that non-state actors in conflicts of a non-international and purely internal character are not deemed de jure combatants in the way that state actors are, and they therefore do not benefit from POW status. The only protection for those non-state actors engaged in a conflict of a non international character derive from Common Article 3 and Protocol II, which is to be treated, at minimum, in accordance with the specific contents of those provisions, which summarize the broader and more detailed protections contained in the Four Geneva Conventions of 1949. Moreover, such persons can be treated as ordinary criminals who have violated domestic criminal law, whether or not they have complied with IHL or national law. Thus, even if non-state actors engaged in a conflict of a non-international character with a state satisfied all of the requirements of a lawful combatant under Geneva III and IV and used force only against an opposing combatant who is a state actor, their action would still be deemed criminal under domestic law. IHL does not afford them the lawful status of a combatant like those who are part of the armed forces of a state. This imbalance is maintained by states that retain the monopoly of legitimate use of force and want to deny their non-state actor opponents the protections owed to POWs and the benefit of combatant legitimacy. Scholars and experts have sought to redress this imbalance by doctrinal development but with little practical success, as evidenced by the fact that the relevant norms of IHL have not been amended to date.
One of the early authoritative commentators on the Geneva Conventions, Jean Pictet, concluded that Common Article 3 should apply as follows:
(1) That the Party in revolt against the de jure Government possesses an organized military force, an authority responsible for its acts, acting within a determinate territory and having the means of respecting and ensuring respect for the Convention.
(2) That the legal Government is obliged to have recourse to the regular military forces against insurgents organized as military and in possession of a part of the national territory.
(3) (a) That the de jure Government has recognized the insurgents as belligerents; or
(b) that it has claimed for itself the rights of a belligerent; or
(c) that it has accorded the insurgents recognition as belligerents for the purposes only of the present Convention; or
(d) that the dispute has been admitted to the agenda of the Security Council or the General Assembly of the United Nations as being a threat to international peace, a breach of the peace, or an act of aggression.
(4) (a) That the insurgents have an organization purporting to have the characteristics of a State.
(b) That the insurgent civil authority exercises de facto authority over persons within a determinate territory.
(c) That the armed forces act under the direction of the organized civil authority and are prepared to observe the ordinary laws of war.
(d) That the insurgent civil authority agrees to be bound by the provisions of the Convention. (63)
Although states' international legal positions and governmental opinions affirm that they and non-state actors are equally bound by Common Article 3 and Protocol II, (64) thus giving a false appearance of the existence of a reciprocal balance, states exclusively reserve to themselves the determination of when Common Article 3 and Protocol II are applicable. (65) Thus, two questions arise: first, whether the governments of the High Contracting Parties to the Geneva Conventions deem themselves obligated other than by their own will; and second, whether non-state actors deem themselves obligated even if states claim that they are. The actual practice of states and non-state actors in conflicts of a non-international and internal character evidences the imbalance arising out of the fact that non-state actors would be bound by certain obligations, but would not have the benefits of certain advantages as discussed throughout this Article.
A separate question is the degree to which Common Article 3 is binding upon states. The application of the Article depends on a state's determination of whether the conflict is considered a state of belligerency. However, it is left to the states to determine whether the conflict involving non-state actors is or is not considered to be part of a state of belligerency. However, states may claim that in order to be binding, there must be a state of belligerency. Consequently, if states can determine that a state of belligerency does not exist, they can argue that Common Article 3 is not applicable and thus they do not have to treat those who opposed them in accordance with its provisions. The imbalance results in unfairness and that in turn leads those who engage in such conflicts against states to ignore the obligations of humane treatment that are predicated in this situation on the assumption of reciprocity. (66) Scholars argue that the obligation of humane treatment is binding upon states, whether states declare it to be or not. (67) Non-state actors have no inducement for compliance without the assurance of reciprocity, and certainly none if they are treated as common criminals, instead of lawful combatants.
To complicate matters, purely domestic conflicts are excluded from the applicability of IHL, though some experts argue that these conflicts should be included under Common Article 3 and Protocol II. Most states, however, consider them outside IHL's protective scheme. (68) Purely domestic or internal conflicts that do not satisfy the elements of a conflict of a non-international character as defined in Common Article 3 and Protocol II are referred to by the ICRC as "internal disturbances or strife" and as "internal strife." (69) These types of conflict are subject to another legal regime--that of International Human Rights Law (IHRL), which has no coercive enforcement mechanism. They are however subject to International Criminal Law (ICL), subject however to certain limitations of ICL's applicability to non-state actors as discussed above.
It is anachronistic that these different legal regimes and sub-regimes apply to the same socially protected interests and reflect the same human and social values, but differ in their applications depending on the legal characterization of the type of conflict. Governments maintain these distinctions for purely political reasons, namely, to avoid giving insurgents any claim or appearance of legal legitimacy. This political rationale is the source for the legal disparities in IHL mentioned above.
Experts agree that that there is no valid conceptual basis to distinguish between the same rights and protections extended to persons and targets because of how a conflict is legally characterized. (70) There is no valid distinction between rights and obligations that emanate from the same commonly-shared values and intended to apply to the same protected interests. (71) To sidestep their argument, governments argue that the resort to violence by domestic insurgent groups is in the nature of "terrorism." (72) In So doing, states seek to deny non-state actors insurgents' legitimacy, and the rights and protections contained in the regulation of armed conflict. (73)
The consequences of this artificial legal distinction are, however, significant. The 1949 Geneva Conventions and Protocol I are applicable to conflicts of an international character. They deem "grave breaches" to include, inter alia: murder, torture, rape, mistreatment of prisoners of war (POWs) and civilians, wanton and willful destruction of public and private property, destruction of cultural and religious monuments and objects, use of civilians and POWs as human shields, and collective punishment of civilians and POWs. (74) These same depredations are not deemed "grave breaches" in conflicts of a non-international and purely internal character. (75) Common Article 3 and Protocol II, which apply to conflicts of a non-international character, deem the same transgressions as "violations" and not as "grave breaches," even though the prohibited acts are described in substantially similar terms. As a result, the legal consequences between "grave breaches" and "violations" differ as to the duties to criminalize, prosecute, punish, and extradite, even though experts argue that they should be the same. (76) The 1949 Geneva Conventions and Protocol I establish certain consequences for "grave breaches," which include: the duty for states to criminalize these violations in their domestic laws; to prosecute or extradite those who commit such violations; to provide other states with judicial assistance in the investigation or prosecution of such "grave breaches[;]" (77) to establish a basis for universal jurisdiction so that all state parties to the Geneva Conventions can prosecute such offenders; (78) and to remove statutes of limitation for such offenses. (79) In contrast, Common Article 3 of the 1949 Geneva Conventions (80) and Protocol 11 (81) do not contain the same explicit legal obligations. To remedy this inconsistency, some scholars argue that the obligations to prevent and suppress "violations" of Common Article 3 and Protocol II should be treated in the same manner and with the same legal consequences as violations of the "grave breaches" of the 1949 Conventions and Protocol 1. (82)
The imbalance that exists in IHL with respect to the norms applicable to conflicts of an international character, conflicts of a non-international character, and conflicts of a purely internal character is significant. But, the greater imbalance is in the non-applicability of these norms to what are legally characterized as conflicts of a purely internal nature. To what extent this imbalance impacts on compliance with these norms by both state and non-state actors is conjectural. However, common sense leads to the conclusion that such an imbalance favoring state actors is a factor that negatively impacts on their voluntary compliance, as well as that of non-state actors. Common sense also dictates that since non-state actors in non-international conflicts do not benefit from the same protections as combatants in conflicts of an international character, they are likely to be less motivated to voluntarily comply with IHL than if they had some inducement to do so.
III. CHARACTERISTICS OF NON-INTERNATIONAL AND INTERNAL CONFLICTS
A. LEGAL CHARACTERIZATIONS
As stated above, international law norms differ in their application to the different types of conflicts. International law is concerned with the legal characterization of conflicts, the legal status of combatants and noncombatants, and the legal status of their public or quasi-public acts, and thus, to some extent, with the recognition of non-state actors as subjects of international law. (83) IHL is concerned with the means and methods by which these groups conduct themselves in the course of armed conflicts, otherwise referred to as the jus in bello.
International law and IHL first recognized non-state actors in the era of de-colonization during the 1950s-1980s when these groups were engaged in what are called "wars of national liberation." (84) The limited recognition that they were given under public international law was based on the likely expectation that, after independence, these groups would become part of the legitimate government in their new state. Thus, in effect creating an exception for certain non-state actors based on future political expectations. This and other de facto exceptions, coupled with the post-conflict practices of impunity and amnesty, have resulted in an unequal application of international law to different participants engaged in violent conflictual interactions. This political dimension has undermined the value-oriented goals of international norms designed to minimize the harmful consequences of violent conflictual interactions. In turn, this situation negatively affects individual and collective compliance with principles and norms designed to minimize harmful consequences to protected persons and targets in the course of armed conflict regardless of how the given conflict is legally characterized. The outcome has been an increase in harmful conduct, which paradoxically enhances political gains. (85) Thus, non-state actors who have the capacity to commit greater harm, even when violating IHL, are likely to receive greater political recognition, including the likelihood of impunity for their violations of IHL.
The policy considerations attendant to international law's recognition of groups engaged in wars of national liberation, which are reflected in Geneva Convention Protocol I, differ from those arising out of Common Article 3 and Protocol II and from those arising under the customary law of armed conflict applicable to conflict of a non-international character. (86) The policy considerations of Protocol I are based on the legitimacy of such conflicts and on the expectation that those engaged in these conflicts will emerge as the leaders of newly independent states. This is different from non-state actors who are insurgents against their own legitimate governments, irrespective of the legitimacy of their claims against the governments that they oppose. Protocol I, however, establishes conditions for the members of these groups who are engaged in wars of national liberation enabling them to fall within the meaning of legitimate combatants and to benefit from the status of POW, as well as to benefit from other consequences deriving from their status as lawful combatants if they meet the normative requirements. (87)
An additional element figures into the calculus of compliance. In some situations, non-state actor groups exercise dominion and control over a portion of a state's territory and may even exercise some of the manifestations of sovereignty or public authority over a given part of the national territory and over its inhabitants. (88) In these cases, international law tends to give such groups enhanced recognition. This means that groups that do not exercise exclusive dominion and control over a more or less defined portion of a given territory, because they operate out of a narrow territorial base from which they carry out incursions in the same or different parts of the state's territory, have less of a political or quasi-legitimate status. (89) The difference between the de facto exercise of territorial dominion and control and its absence bears upon international law's recognition of the acts of such groups as quasi-public acts that carry or imply some internationally recognized legal consequences. However, it does not bear upon the lawfulness or unlawfulness of their conduct, which is regulated by IHL. (90) Additionally, as experience indicates, these groups occasionally succeed in their belligerency or insurgency and form a state's new government, thus acquiring full legitimacy with the consequence that their wartime depredations go unpunished. Because of the potential political transformations of these groups, international law, reflecting the practices of states, grants them a measure of international legal recognition. While this political recognition should have no bearing on these groups' compliance or lack thereof with IHL norms, acquiring political legitimacy unfortunately seems to overshadow their previous violations of IHL. This situation tends to enhance non-compliance because of the expectations of later impunity. (91)
Since governments refuse to give belligerent and insurgent groups international legal recognition, the latter may seek to acquire such standing by declaring themselves willing to abide by IHL. (92) By conforming their conduct to IHL, they may seek partial recognition before the international community. In their perceptions, they implicitly become legitimate groups with some semblance of equal status to the governments with which they are in conflict. Precisely to avert such public recognition, however, governments strongly oppose the co-opting of these groups into processes of legitimacy, which in turn removes the incentives for such groups to comply with IHL and continue to act outside the boundaries of legitimacy. (93)
International policy should be that whether state or non-state actors, all those who engage in armed conflicts are subject to: (1) IHL, which provides for the regulation of the use of force in the context of armed conflicts and whose violations constitute war crimes; (94) (2) the Genocide Convention, applicable in times of peace and war, (95) which establishes non-derogable prohibitions deemed erga omnes; (96) and (3) the customary law of crimes against humanity, also applicable in times of peace and war, which establishes non-derogable prohibitions deemed erga omnes (also embodied in positive international criminal law in the Statutes of the International Criminal Court (ICC), (97) the International Criminal Tribunal for the former Yugoslavia (ICTY), (98) and the International Criminal Tribunal for Rwanda (ICTR)). (99)
What is also lacking in this legitimacy dilemma is that the international community does not link political legitimacy to accountability mechanisms. In other words, there is no sign-on declaration available in which groups of non-state actors would be given some legitimacy in exchange for their formal recognition of the applicability of IHL and the acknowledgement that those who violate it commit war crimes, crimes against humanity, and genocide will be subject to prosecution, whether before an international or national legal institution.
Norms applicable to conflicts of a non-international character and purely internal conflicts grew out of the conceptual framework of norms applicable to conflicts of an international character. The norms that emerged from the 1949 Geneva Conventions are not truly part of a separate legal regime suited to conflicts of a non-international character. Protocol II attempted to create a separate legal regime for conflicts of a non-international character, but it is essentially an extension by analogy to the regime applicable to conflicts of an international character. This proposition is reinforced by the fact that some of these conflicts are normatively deemed to be conflicts of an international character as established in Article 1(4) of Protocol I while others are not. (100) The reluctance of governments to recognize the peculiarities of conflicts of a non-international character and to provide for compliance-inducing factors by non-state actors, while carving out exceptions for transgressions of IHL, contributes to non-compliance by both state and non-state actors. Lastly, the absence of conflict resolution mechanisms leaves no alternative options to violent confrontation. When that occurs, non-state actors find themselves more often than not facing an asymmetry of forces and power-relations with state-actors. Consequently, non-state actors engage in violations of IHL, and in acts of "terrorism," as a way of redressing the imbalance of power and forces--thus, decreasing their compliance with IHL.
All of these factors mentioned reduce voluntary compliance, which already suffers from a significant difference deficit. An analysis of specific IHL provisions assists in the appreciation of the conflict engendered by overlapping legal regimes. Before embarking on this task, it is essential to identify a method of legal interpretation. If that method is legal positivism, reliance on the specific language of the normative text on the basis of the original intent with which it was drafted and on the basis of which it was signed and then ratified by states is required. If, in contrast, the method employed falls in the broad category of progressive interpretation, then the textual language will be interpreted in a way that varies in accordance with the custom and practice of states or in accordance with the "writings of the most distinguished publicists."
Common Article 3, which is frequently referred to as a "mini-convention" within the 1949 Conventions, offers a useful starting point. An interpretation of the scope, content and consequences of this provision is necessary. If the positivist approach is followed, it will take into account that the textual language of Common Article 3 and Protocol II (101) is different from that of "grave breaches" as contained in all four Conventions, (102) as well as in Protocol I. (103) This is evident in the use of the terminology employed in these two normative sources and the consequences that ensue from their violations. These differences reveal that the drafters of the 1949 Conventions sought to establish a distinction between "grave breaches" and their consequences, as they arise in the context of a conflict of an international character, and the "violations" contained in Common Article 3. (104) The prohibitions contained in the "grave breaches" provisions are more specific and more encompassing than the "violations" contained in Common Article 3,1 (105) which are described with less specificity and without clear and express obligations deriving from their violations. The plain language and meaning of the relevant provisions reveal that the same legal consequences do not arise from "violations" of Common Article 3 as do with respect to "grave breaches." The positivist interpretation would lead to the conclusion that Common Article 3 "violations" do not have the same standing and consequences of "grave breaches." In contrast, a progressive interpretative method, which is advocated in the writings of various scholars, (106) transforms the "violations" of Common Article 3 into the functional equivalent of "grave breaches," thereby carrying the same legal consequences. These are: the obligation for all states to enforce and criminalize the violations in their national legal systems; prosecute and/or extradite alleged offenders; ensure the punishment of those adjudged responsible; provide mutual legal assistance to states investigating or seeking to prosecute; provide universal jurisdiction for all states to prosecute; eliminate the defense of obedience to superior orders; establish command responsibility; and to eliminate the immunity of heads of state. (107)
A separate interpretive problem arises with respect to conditions determining the status of combatants. The applicable law is not uniform on the subject and thus creates norm-defeating ambiguity that detracts from compliance. The threshold conditions for determining whether combatants qualify for POW status are defined by both Article 4 of the Third Geneva Convention of 1949 and Article 1 of Protocol II. (108) The Third Geneva Convention requires four conditions for combatants to benefit from the status of lawful combatant and POW. (109) Article I requires only two of these conditions, namely that the combatants be commanded by superior officers and that they accept the obligations contained in the Geneva Conventions (the 1949 Conventions, as well as those contained in Protocol II). (110) Thus, for some states, the issue of whether a combatant in a conflict of a non-international character wears a uniform with a distinct emblem or insignia and carries his arms in the open, as required by Article 4, is critical to the recognition of the status of lawful combatants and POW status, whereas for other states these characteristics do not inform the determination.
Nevertheless, the essence of the requirements contained in both Article 4 of the Third Geneva Convention of 1949 and Article 1 of Protocol II is the same, namely whether such combatants are willing to abide by IHL. The problem, however, is how to ascertain the existence of this. Is it to be determined subjectively on the basis of each combatant's intention, or objectively on the basis of some external factors? This problem has not been sufficiently addressed in the literature on the subject. One approach could be to establish a legal presumption that non-state actors who engage in conflicts of a non-international armed character are legally presumed to have known and accepted the obligations arising under IHL. Another approach would be to develop a mechanism by which such groups could communicate their willingness to be bound by IHL to the ICRC. Lastly, a third approach would be to require states to declare that they will abide by IHL in any conflict with non-state actors engaging in a conflict of a non-international character, which would induce said groups to reciprocate. These three options would in fact co-opt non-state actors into compliance and enhance state compliance.
A further complication is that the practice of states leads to the conclusion that the determination of whether an insurgent group meets the two or four conditions required for non-state actors to qualify as lawful combatants respectively under Article 1 of Protocol II and Article 4 of the Third Geneva Convention is left to states' unilateral determination. This problem has recently been highlighted by the position of the United States in relation to Taliban and Al Qaeda fighters in Afghanistan. (111)
There are also a number of other ambiguous aspects of IHL on which experts differ as to their interpretations. They include: military necessity, proportionality, infliction of unnecessary pain and suffering, command responsibility, the distinction between civilians and non-civilians, and obedience to superior orders. (112) Judicial and quasi-judicial decisions by international tribunals, including the ICTY and ICTR have addressed these issues. (113)
B. CONTEXT SPECIFIC DIFFERENTIATIONS OF LEGAL NORMS APPLICABLE TO NON-STATE ACTORS
As stated above, legal norms applicable to non-state actors are context-specific. Therefore, there are differentiations between norms intended to protect the same social and human interests that depend upon the context, the participants, and who determines certain relevant legal facts in a given armed conflict. The power of factual appreciation and legal characterization left to the states by IHL gives them the power to determine legal outcomes pertaining to non-state actors, and that imbalance between state and non-state actors ultimately leads to non-compliance by both. The following is an applied analysis of these observations.
1. Wars of National Liberation and Regime Change
Wars of national liberation change are treated as an exception to other norms applicable to non-state actors in conflicts of a non-international character. Non-state actors engaged in wars of national liberation under Protocol I, receive status equivalent to combatants in conflicts of an international character. The Protocol's Article 1(4) covers "armed...
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