Briefing Note: Armed Groups and International Law — Challenges to Humanitarian Action

Engaging with non-state armed groups has always been a challenging task. Yet such engagement is perceived among humanitarian professionals as an integral part of negotiating access and advocating for compliance with the rules of international humanitarian law (IHL) and human rights law. Two recent news items illustrate the complexity of these humanitarian tasks. First, on March 14 the International Criminal Court issued its inaugural trial judgment, finding Thomas Lubanga Dyilo — the head of the Union of Congolese Patriots during a conflict in the Ituri region of the Democratic Republic of the Congo about a decade ago — guilty of the war crimes of enlisting and conscripting child soldiers and using children to actively participate in hostilities. (Disclosure: I served as a Visiting Professional to Judge Sir Adrian Fulford, who is one of the three trial chamber judges in the case.) Second, "Kony 2012" — a (now viral) video, viewed over 85 million times, that casts a spotlight on Joseph Kony, the head of the Lord's Resistance Army and subject of an ICC arrest warrant — garnered unprecedented attention. Both of these events relate primarily to the use of child soldiers by armed groups. Yet many other facets of civilian protection — such as prohibitions on attacks against civilians and humanitarian access to civilians under armed groups' control — are linked to armed groups in certain contemporary armed conflicts as well. 
Humanitarian actors face multifaceted challenges to developing principled and effective engagement strategies with armed groups in non-international armed conflicts (NIACs). Part of those challenges stems from the lack of a coherent and exhaustive normative framework to engage with armed groups. This is due in no small part to states' politically driven resistance to developing international legal standards reflecting the prominence and stature of armed groups — a challenge that goes to the heart of the international legal system, as states are the primary makers of international law. This challenge, in turn, contributes to a fundamental tension between states and humanitarians. On the one hand, a state battling an armed group seeks to eliminate any support that may confer a military or political benefit to the group. On the other hand, humanitarians seek to provide humanitarian relief to all of those not, or no longer, participating in hostilities regardless of their political or ideological affiliation. 
This tension has been magnified amid reports in recent years of an increase in non-international armed conflicts — that is, conflicts waged between a state's armed forces and an organized armed group, or between such groups. Whether there has been actual increase in such conflicts, or whether this purported trend rather reflects increased scrutiny of conflicts that have gone relatively unrecognized for a long time, is an open question. Yet regardless of the answer to that question, there is a clear need for norms and methods of engagement with armed groups given the reality of their existence. As explained below, however, the legal parameters pertaining to armed groups are unclear in important respects. This is because, in short, states have remained cautious in regulating non-international armed conflicts, in part since states do not want to privilege the position of armed groups and in part since states fighting armed groups do not want to be exposed to more scrutiny from other states, intergovernmental organizations, and non-governmental organizations (NGOs). 
Largely made by states, international law applicable to armed groups has developed in fits and starts over the last six decades. When it comes to ownership over the rules, an asymmetry has therefore arisen between states and armed groups. Armed groups often see themselves as having less say over the content of the rules, and consequently may consider themselves less bound to comply with them. 
Generally speaking, two sets of responses have attempted to allay concerns about potential "gaps" or "lacunae" of international law applicable to armed groups in NIACs. First, in arguing that the legal framework governing NIACs is sufficient, positivists point to the adoption of Common Article 3 in 1949 (CA3) and of Additional Protocol II of 1977 (AP II). These treaty provisions entail important protections for those not, or no longer, participating in hostilities. Yet an array of issues remains unresolved by the text of CA3 (and, to a lesser extent, AP II, which in any event many states have not become a party to). Those issues include the legal basis on which armed groups are bound to comply with provisions of CA3 and AP II, the legal basis for and scope of so-called security detention, and the rules governing conduct of hostilities. Second, to help fill-in perceived "gaps" in the treaty provisions applicable to NIACs, judges of international tribunals and international law scholars — as well as the International Committee of the Red Cross — have identified (some might less charitably say developed) rules of customary law drawn from international law applicable to interstate conflicts, which are much more regulated in treaties than non-international armed conflicts. 
This is not to say that international humanitarian law (IHL — also known as the law of armed conflict) does not provide at least a minimal basis for humanitarians to engage with armed groups in NIACs. IHL does so, for example, by allowing independent and neutral humanitarian organizations to offer their services to all parties to non-international armed conflicts. Yet in important respects IHL alone does not provide an exhaustive framework for principled engagement with armed groups. 
Humanitarian actors therefore face the question of how to prevent violations and abuses by armed groups — how, in effect, to change their behavior — while recognizing the limited nature of the relevant legal system. Three potential routes — political, professional, and technical — may be useful to consider. 
From a political perspective, humanitarian actors may consider engaging in attempts to mediate the underlying tension — namely, states' aim to eliminate support to armed groups and humanitarians' concern for the well-being of everyone based on their common humanity. Humanitarians may do so by emphasizing the need to engage with armed groups in order to provide life-saving assistance to those not, or no longer, participating in hostilities. 
Within the professional realm, humanitarians may continue to identify and develop methods and modalities of principled engagement with armed groups in NIACs. Various NGOs — such as Geneva Call and Centre for Humanitarian Dialogue — have undertaken such initiatives. Given the inexhaustive nature of the applicable legal framework, in developing methods and modalities of engagement humanitarians may focus more on social norms than on legal norms. Like all organizations, armed groups are products of their time, place, and location. As such, they adhere to specific social, cultural, and religious norms. Humanitarians may learn more about the norms of these organizations — some of which are reflected in codes of conduct — and develop protection strategies drawn from them.
As a technical matter, humanitarians may choose to devote more resources to researching how to influence the behavior of armed groups in order to promote compliance with humanitarian principles and norms. Building off recent research, humanitarians may attempt to identify, for example, which social norms, economic factors, and political attributes are likely to shape the behavior of armed groups. 
In sum, given the continued relevance of armed groups in many contemporary armed conflicts, it is imperative for humanitarian actors to understand what legal and political constraints operate to limit principled humanitarian engagement with armed groups, and how to devise professionally developed  protection strategies to undertake such engagement.

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