Institute for International Law

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1 Katholieke Universiteit Leuven Faculty of Law Institute for International Law Working Paper No Non-State Actors and International Humanitarian Law Cedric Ryngaert

2 The Institute for International Law of the K.U.Leuven groups the teaching and research in public international law and the law of international organizations at the Faculty of Law of the University of Leuven. The Institute also organizes colloquia, seminars, workshops and lectures which bring current issues of international law to the fore. Since the spring of 2007, the Institute participates in the Leuven Centre for Global Governance Studies. This interdisciplinary research centre of the Humanities and Social Sciences carries out and supports interdisciplinary research on topics related to globalization, governance processes and multilateralism, with a particular focus on the following areas, taking the many cross-cutting issues into account: (i) trade and sustainable development, (ii) peace and security, (iii) human rights, democracy and rule of law, and (iv) the European Union and global multilateral governance. The working paper series, started in 2001, aims at a broader dissemination of the results of the research of the Institute and of other researchers in the academic community and in society. It contains contributions in Dutch, in English and in French. Reference may be made to these working papers with proper citation of source. For more information and a complete list of available working papers, please visit the website of the Institute for International Law on and the website of the Leuven Centre for Global Governance Studies on Instituut voor Internationaal Recht, K.U. Leuven, Institute for International Law K.U.Leuven Tiensestraat 41, B-3000 Leuven Tel Fax Prof. Dr. Jan Wouters, Professor of International Law and International Organizations; Director, Leuven Centre for Global Governance Studies and Institute for International Law, K.U.Leuven

3 NON-STATE ACTORS AND INTERNATIONAL HUMANITARIAN LAW Cedric Ryngaert Assistant Professor of International Law Leuven University and Utrecht University BOF research fellow Leuven University While talking about non-state actors may be a non-starter in respect of a number of branches of public international law, this is undeniably not so in international humanitarian law (IHL). Admittedly, IHL was historically geared toward regulating warfare between States, and it paid only scant attention to the interests of non-state actors. Yet in the course of the twentieth century, IHL s protective remit has substantially broadened so as to include the two possible categories of non-state actors finding themselves in the line of fire: those who fight and those who do not fight. The non-state actors who do not fight are under normal circumstance civilians. By virtue of the principle of distinction, they can as such not be a legitimate target of an attack, although they can sometimes be considered as collateral damage of attacks directed at military objectives. 1 The emphasis of this contribution will lie on the international legal position of non-state actors who do fight (or have fought), however. It is worth noting at the outset that, those actors members of an armed (opposition) group have comparatively few rights under IHL, as is clear from a comparison of the limited number of provisions of Additional Protocol II to the Geneva Conventions (AP II, i.e., the Convention governing non-international armed conflicts, pitting government forces against insurgents) with the extensive protections granted by the four Geneva Conventions and Additional Protocol I (the conventions applicable to international armed conflicts pitting government forces against each other). 2 They have all the more duties, however, both under domestic (criminal) law and also under international law. The phenomenon of non-state actor duties under IHL is the primary focus of this piece. States typically consider insurgent or rebel groups as illegitimate combatants or terrorists who are deprived of any legitimacy. 3 Their actions are outlawed and harshly punished under the domestic laws of the State. Undeniably, those armed groups are, and should be, bound by domestic law. The imposition of duties on non- State armed groups at the international leval is less straightforward, however. Because States view rebel groups as outlaw actors (understandably so, as they directly threaten State interests), Statess may resist calls to grant such groups any international legal personality at all, for fear of legitimating their actions. If this argument is taken at face value, however, this would also mean that non-state armed groups are also not bound 1 Article 51 of Additional Protocol nr. I to the Geneva Conventions (1977). 2 Basically, under IHL, members of non-state armed groups, while they can (of course) be legitimate objects of an attack, do not forfeit all their rights when taking up arms (e.g., they cannot be summarily executed, they cannot be tortured, they have certain due process rights, etc.). 3 In fact, however, those groups may be more legitimate than the State they are fighting against. E.g., C. Burderlein, A. Clapham, K. Krause, M.-M. Ould Mohamedou, Program on Humanitarian Policy and Conflict Research, Harvard University, Transnational and Non-State Actors: Issues and Challenges, Concept Note, 2007, p. 2 ( The ability of NSAs to deploy state-like infrastructure in terms of public services ( ) and to the legitimacy they come to gain from these activities challenge directly the relevance of the state concerned as the quasi-exclusive legitimate international actor. ).

4 by IHL (in particular Common Article 3 of the Geneva Conventions and AP II). Without personality, indeed, one can impossibly have legal obligations. The Conventions are rather unequivocal as to their binding nature for any party to a conflict, however. 4 There are in fact good legal policy reasons for binding non-state actors to IHL, also viewed from the perspective of States. Because domestic criminal law emanates from the very government that they are fighting against, it is not very likely to deter them. 5 Governments should realize that only norms that are imbued with a sufficient measure of legitimacy will tend to be complied with by non-state actors. IHL, designed internationally, may precisely offer such norms. Since IHL may civilize the conduct of non-state actors in ways that State law cannot, States have an interest in entering into IHL conventions aimed at regulating internal conflicts. Of course, reciprocity demands that States give up their freedom of action vis-à-vis insurgent groups, but if insurgent groups limit their action accordingly, that may be a price worth paying. Within the international community, it is generally accepted, also by the UN Security Council, that non-state armed groups are bound by IHL indeed. 6 Nonetheless, statements that non-state armed groups are bound by IHL do not solve this major conceptual problem with undesirable practical repercussions: how can insurgent groups be bound by IHL conventions which they have not signed up to? Indeed, these conventions, while also limiting insurgent action, are negotiated by States, and only by States. It is this problem that will be tackled in Section 1 of this contribution: what can explain the binding character of IHL conventions for non-state armed groups? It is argued that, while in the eyes of insurgent groups international law conventions may compare favorably with domestic law in terms of legitimacy, the absence of consent to be bound on their part continues to detract from the legitimacy of IHL norms. Ideally, mechanisms aimed at securing consent ought to be offered to insurgent groups in order for IHL conventions to become truly binding, and ultimately effective on the ground. After all, pursuant to discursive democracy theory, one can only be subject to the writ of the law, and be expected to comply with the law, if one has participated, however indirectly, in the formation of this law. In a brief second section, this contribution will inquire into the scope of IHL in conflicts involving non-state actors. It will be ascertained at what point a conflict involving a non-state actor (typically pitted against a State) becomes an armed conflict, thereby giving rise to the application of IHL. This section will also inquire 4 Cf. Common Article 3 of the Geneva Conventions ( In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions ); and Art.1.1 of AP II ( This Protocol shall apply to all armed conflicts which are not covered by [AP I] and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups ) (emphasis added). 5 Compare M. Sassoli, The Implementation of International Humanitarian Law: Current and Inherent Challenges, 10 Yearbook of International Humanitarian Law 45, 63 (2007) (arguing that the only possibility to engage [armed groups] is to engage them by international law and by mechanisms of international law in view of their not being within the practical reach of the law and the law enforcement systems of the state on whose territory they are fighting ). 6 E.g., the recent UN Security Council Resolution 1882 (2009) on Children and Armed Conflict (condemning, in operational paragraph 1, all violations of applicable international law involving the recruitment and use of children by [all] parties to armed conflict ). It may be argued that, in respect of specific conflicts and specific non-state actors, the Security Council, as a law-creator, constitutes the binding nature of IHL. See on the role of the UN Security Council in relation to the application of IHL and human rights to armed non-state actors: A. Constantinides, Direct human rights obligations and accountability of armed groups in Security Council practice, forthcoming in Human Rights and International Legal Discourse (2010).

5 into whether IHL as we know it today can sufficiently cope with the challenges posed by new terrorist non-state actors. 1. The binding character of international humanitarian law for non-state actors The rationale for the purported binding character of international humanitarian law, and in particular Common Article 3 of the Geneva Conventions and its Additional Protocol nr. II, for non-state armed groups remains somewhat elusive. Different explanations of why such groups are bound by those conventions, in spite of their not having signed up to them, have been offered, none of them being fully satisfactory. In what is seen as the majority view, 7 non-state actors are bound by IHL by reason of their being active on the territory of a Contracting Party (a State Party to the Geneva Conventions and/or its Additional Protocols). This theory is also referred to as the principle of legislative jurisdiction, pursuant to which the agreements which a State enters into are automatically binding on all (non-state) actors within its jurisdiction. 8 The advantage of this theory is that it may subject all armed groups active on a State territory to IHL, whether or not these groups have consented to be bound. The apparent redundancy of consent is the main flaw of this theory, however. Deconstructing the State by submitting that State governments can bind the people because they represent the people only takes us so far. In reality, there are no groups that feel less represented by the State than armed opposition groups. The theory binds those groups by IHL without their consent, which in turn risks to adversely affect their compliance with IHL. Sivakumaran seems to believe that he can remedy this defect by highlighting to armed groups the inherent legitimacy of the rule (its substantive content: its importance for the well-functioning of the international community) over its procedural legitimacy (the fair and inclusive procedure of its adoption), where he states that [c]ompliance in this regard is likely affected more by the degree of legitimacy the armed opposition group sees in the rules than the precise manner in which they are bound. 9 However, he fails to explain this substantive legitimacy argument: what is it precisely that endows IHL rules with inherent legitimacy? In fact, his argument falls flat in his very next sentence, where he pleads for enhancing procedural legitimacy all the same: In order to increase the degree of legitimacy of and foster a sense of respect for the laws governing internal armed conflict, participation of armed opposition groups in the formation of the rules is vital. 10 The concept of substantive legitimacy is nevertheless an interesting one, as it may indeed overcome procedural consent problems. Notably in the field of international criminal law has it been put to good use: for a limited number of international crimes, international criminal responsibility attaches irrespective of the capacity of the 7 Program on Humanitarian Policy and Conflict Research, Harvard University, Graduate Institute of International Studies, Geneva, Empowered Groups, Tested Laws, and Policy Options. The Challenges of Transnational and Non-State Armed Groups, November 2007, p Cf. S. Sivakumaran, Binding Armed Opposition Groups, 55 International and Comparative Law Quarterly 369, 381 (2006); the principle has been assailed by A. Cassese, The Status of Rebels under the 1977 Geneva Protocol on Non-International Armed Conflicts, 30 International and Comparative Law Quarterly 416, 429 (1981). 9 Sivakumaran, above n. 6, at Id.

6 perpetrator and irrespective of his consent to the relevant rules. 11 Given the heinous character of the crimes, the international community appears to assume that no reasonable person can withhold his consent to be bound by the rules allotting responsibility for the crimes. It is precisely the argument that non-state actors are also bound by international criminal law that has been resorted to so as to support in fact as an alternative argument the binding character of IHL for armed groups. 12 Surely, members of armed groups can only incur international criminal responsibility if they are bound by the underlying norm of IHL? There is indeed no denying that some more serious violations of international humanitarian law qualify as grave breaches or international crimes to which international criminal responsibility attaches. This responsibility is individual and not collective, however. There are no indications that entities, such as armed opposition groups, incur, qua entities (i.e., separate from their constituent members) international criminal responsibility for violations of IHL. 13 On the contrary, the personal jurisdiction of such international criminal tribunals such as the Nuremberg Tribunal (International Military Tribunal) and the International Criminal Court was/is limited to natural persons, 14 and the grave breaches provisions in the Geneva Conventions only refer to individual perpetrators. 15 Accordingly, the fact that there is individual responsibility under international criminal law cannot be used so as to support an argument that there is such a thing as collective criminal responsibility of the entity made up of the individuals. If the hypothesis that entities incur international criminal responsibility proves unsubstantiated, so does the hypothesis that those entities are necessarily bound by the substantive norms of international humanitarian law which underlie any criminalization. 16 An alternative rationale has it that, because some armed groups exercise de facto control over territory, they behave like States, and thus, any international obligations including obligations under IHL incurred by States should also be incurred by those armed groups. This rationale can never fully explain the binding nature of IHL for all armed groups, as not all of them exercise territorial control. 17 Irrespective of its limited scope, however, it is worth looking at this explanation in respect of those groups that do exercise territorial control. It is noted in this respect 11 Cf. C. Ryngaert, Imposing International Duties on non-state Actors and the Legitimacy of International Law, forthcoming in M. Noortmann and C. Ryngaert (eds.), Non-State Actor Dynamics in International Law: From Law -Taking to Law -Making, Aldershot, Ashgate, Sivakumaran, above n. 6, at 385 (stating that it is evident that in orde to be able to prosecute individuals for the breach of certain rules, they must necessarily have been binding upon them in the first place ). 13 See however A. Clapham, Extending International Criminal Law beyond the Individual to Corporations and Armed Opposition Groups, 6 Journal of International Criminal Justice 899 (2008). 14 Article 25 of the ICC Statute (referring to natural persons); Article 6 of the Charter of the International Military Tribunal (Nuremberg Charter) (referring to individuals and members of organizations ). 15 E.g., Article 49 of the First Geneva Convention 1949 (referring to persons, who can, amongst others be handed over trial by one State to another). 16 The inference that IHL is binding on armed groups because of there being individual criminal responsibility for war crimes is also implicitly rejected in Empowered Groups, above n. 5, at 32 ( although such individual responsibility comes into play directly as regards the punishment of individuals for war crimes, IHL distinguishes clearly between different kinds of collective entities such as states, armed groups, and civilians ). 17 In fact, few of them may exercise de facto control over territory. Contra Concept Note Harvard, above n. 2, at 1 ( Many of these entities control territory and population the way traditional state[s] would: ensuring public safety ( ), offering public service ( ), and raising taxes. ).

7 that the de facto control argument has also been made so as to justify the binding character of human rights obligations for armed groups. The present author has cautiously supported it in a previous publication, although I preferred using the term legitimate expectations rather than binding law so as to denote the normative human rights expectations that one can have of armed groups. 18 Even if one accepts the argument that armed groups are indeed bound by human rights law, it is submitted that the human rights analogy only takes us so far as in terms of justifying the binding character of IHL for armed groups. The binding character of human rights obligations for armed groups is based on their being, like governments, in a vertical position of power: those groups, exercising territorial control, serve as (quasi-)governments and rule over their citizens (the inhabitants of the territory). The law of armed conflict, in contrast, is not necessarily based on a situation of governments or government-like actors exercising control over other actors. In fact, it merely aims at civilizing the conduct of warfare. Only to the extent that IHL rules relate to the protection of civilians, e.g., in occupied territories, may the analogy with human rights law prove apt. In this respect, the more human rights-oriented provisions of Additional Protocol nr. II to the Geneva Conventions may go some way to buttress the de facto control rationale. Because also the de facto control theory has limited explanatory power, another theory, which has notably been advocated by Cassese, may be put forward. This theory has it that armed groups can be bound by IHL conventions because treaties can create obligations for third parties, an argument that is based on Article 35 of the 1969 Vienna Convention on the Law of Treaties (VCLT). 19 The theory can easily be dismissed on the ground that that the Convention only addresses the situation of treaties between States creating obligations for other (third) States. 20 The major weakness of the theory, however, is that it only explains the binding character of IHL for armed groups provided that these groups consent to be bound. In accordance with Article 35 VCLT, as well as common sense, treaties cannot create obligations for third parties without their consent. In the final analysis, the theory boils down to the basic idea that an armed group is only bound if it wants to be bound. 21 If armed groups refrain from giving their consent and indeed, not all of them have given their consent they are not bound by IHL. 22 The consent problem may finally be overcome by pointing out the binding character of IHL qua customary international law or general principles of law. However, although the ICRC has identified many rules of customary international humanitarian law, 23 not all rules may have customary status or amount to general 18 C. Ryngaert, Human Rights Obligations of Armed Groups, forthcoming in Revue belge de droit international Cassese, above n. 6, at E.g., Sivakumaran, above n. 7, at Compare Sivakumaran, above n. 7, at , adding that verbal assurance would suffice, in spite of the text of Article 35 VCLT. 22 In this respect, such a headline as Landmines in Colombia: Cheap ant Lethal. The FARC flouts the Ottawa treaty in The Economist s August 29 th, 2009 edition (p. 41) is misguided. The FARC cannot flout the Ottawa Mine Ban Treaty as it is not party to it, and even cannot, in its capacity as a non-state actor, become party to the treaty. The FARC can give its consent to be bound by the substance of the treaty through a variety of methods (cf. below), but it is not obliged to (it is noted, in passing, that the FARC s laying of landmines may of course flout Colombian criminal law, and that the consent problem does not play out there). According to the article, the FARC believes that landmines are still useful, as it is arguably the only factor that stops and intimidates offensives of the Colombian army. 23 J.-M. Henckaerts and L. Doswald-Beck, ICRC, Customary International Humanitarian Law, Cambridge University Press, 2005.

8 principles, so that this theory can impossibly ground the binding character of the entire corpus of IHL for non-state actors, as Sivakumaran rightly noted. 24 Moreover, it shifts the problem of non-state actor consent to another level, and elicits the question of whether it is fair to apply customary law to the acts of non-state actors if these actors have not participated in the formation of this law. Sassoli s retorical question [h]ow could [armed] groups be expected to abide by a special set of laws designed to govern conflicts if they are not, however, involved in the law-making process?, 25 applies with equal force in both a treaty and a customary law context. So far, in any event, only State practice, as opposed to non-state actor practice, appears to be taken into account for the formation and identification of customary tlaw. 26 This restriction does not particularly encourage compliance of non-state actors with IHL, and may thus reduce the overall effectiveness of IHL. Indeed, the fact that one is formally bound by the law does not mean that one will also comply with it. Willingness to comply on the part of an actor is crucially dependent on the perception of its having consented to, or at least of having participated in the formation of the law one is bound by. 27 An argument in favor of taking non-state actor practice into account for purposes of customary IHL formation could thus be made. 28 If one accepts this argument, one should however also be willing to accept the consequence that the content of the customary rules thus formed may not as a matter of course be a humanitarian s dream. Armed opposition groups, and a fortiori transnational armed groups with a religious-ideological agenda such as Al Qaeda, are not known for their respect for IHL, quite on the contrary. Accordingly, including non-state actors in the process of customary law formation may possibly lead to regression (although the practice of humanitarian NGOs may of course contributed to more humane rules). 29 But if one is in favor of participatory governance, one should take this for granted. More progressive, inclusive decision-making structures do not guarantee that the actual content of the norms produced by these structure is also progressive. If we aspire for democracy in global governance, we should accept that a limited- 24 See also Sivakumaran, above n. 7, at M. Sassoli, Transnational Armed Groups and International Humanitarian Law, Program on Humanitarian Policy and Conflict Research, Harvard University, HPCR Occasional Paper Series, Winter 2006, at Even the progressive ICRC study seems to have cast aside non-state practice, although it believed that the ICRC s own practice (the ICRC also being a non-state actor) did have a role to play in the identification of relevant customary law. See ICRC study, above n. 21, vol. I, p. xxxv. The ICTY Appeals Chamber, for its part, appeared to take the practice of non-state armed groups into account for customary law purposes in the Tadic case. Prosecutor v. Dusko Tadic, Case IT-94-1, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 104 ( In several cases reflecting customary adherence to basic principles in internal conflicts, the warring parties [including insurgents, CR] have unilaterally committed to abide by international humanitarian law. ); para. 108 (citing the commitment of the FMLN, an insurgent group in El Salvador, to uphold Common Article of the Geneva Conventions and Additional Protocol II); para. 109 ( In addition to the behaviour of belligerent States, Governments and insurgents, other factors have been instrumental in bringing about the formation of the customary rules at issue. ) 27 Cf. Sivakumaran, above n. 7, 375 ( Incorporating their practice into the formation of custom would counter this argument and give them a sense of ownership of the rules, potentially making them less willing to break the rules. ) 28 Sassoli has argued that armed groups already contribute to customary IHL of non-international armed conflicts (above n. 23, at 40), but he appears to unjustifiably infer this from the fact that nonstate actors are the subjects of the rules governing their behaviour (Id.). It is noted that the fact that one is subject to a rule does not mean that one has participated in the formation of the rule. 29 Id., at 28 and 40.

9 membership club can no longer steer the rules in a supposedly humanitarian direction. In this context, it is submitted that the humanizing modern custom theory, which the present author has endorsed in a previous publication, 30 may in fact only deliver the good that it promises if the circle of its contributing agents is limited to NGOs, progressive inter-governmental institutions, and (smaller) States that are not, or barely involved in armed conflict. 31 As has been demonstrated, none of the given explanations to ground the binding character of IHL for non-state armed groups is fully satisfactory: either these theories only partially explain this binding character, e.g., for certain armed groups or in respect of certain norms, or they gloss over the lack of non-state actors formal consent to be bound (this applies notably to the principle of legislative jurisdiction). It is the requirement of consent, on which the entire edifice of international law is after all based, that should be addressed head-on, if the legitimacy of IHL and the effective compliance with it by non-state actors is to be secured. Different methods and instruments to express consent, either unilateral or multilateral, could be resorted to. Firstly, armed groups can unilaterally declare their intent to be bound by (parts of) IHL. It is submitted that such declarations could be characterized as unilateral acts that can create binding obligations under international law for the actors from whom they emanate. As recognized by the International Court of Justice in the Nuclear Tests case, 32 unilateral acts of States can be considered as sources of international law. While this case only addressed acts of States, there is no reason not to extend the binding nature of unilateral acts to other actors whose international legal personality is functionally necessary for the international community to function adequately. 33 As has been expounded, it is imperative for non-state actors to (be able to) express their consent to be bound by IHL for IHL to be effective in armed conflicts involving non- State actors these are currently in fact the majority of armed conflicts. It is observed that some non-governmental organizations may systematically solicit declarations in relation to specific instruments. The organization Geneva Call, for instance, encourages non-state armed groups to sign up to a Deed of Commitment outlawing the use of antipersonnel landmines. 34 One can alternatively argue that such a deed should not solely be seen as a vehicle for attracting unilateral non-state actor declarations, but that it could in fact morph into an international convention or treaty. The international law instrument of a convention, like the unilateral act, should not be reserved for States only. 35 If it is functionally necessary, for purposes of advancing the interests of the international community, for non-state actors to be able to enter into conventions which they intend to produce consequences 30 J. Wouters & C. Ryngaert, The Impact of Human Rights and International Humanitarian Law on the Process of the Formation of Customary International Law, in M. Kamminga & M. Scheinin (eds.), The Impact of Human Rights Law on General International Law, Oxford, Oxford University Press, 2009, See also Sassoli, above n. 23, at 42 (dismissing modern custom on the ground that its rules that are based more upon aspirations of do-gooders and a new wind of natural law than upon what those who fight all over the world actually do ). 32 ICJ, Nuclear Tests (New Zealand v. France), ICJ Rep. 1974, Compare ICJ, Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, ICJ Rep. 1949, It is noted that, while the 1969 Vienna Convention on the Law of Treaties only addresses treaties between States, it does not exclude treaties between other international legal persons. In 1986, a Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations was adopted, which demonstrates that non-state actors could also become parties to treaties.

10 under international law, they should be given this legal capacity. 36 Arguably, in order to cast the IHL net as widely as possible, no armed group should be excluded from enjoying this capacity on the basis of moral aprioris: even armed groups with goals to which the majority of the international community may not agree should qualify. 37 In factual terms, most IHL conventions involving non-state actors, are likely to be bilateral in nature: they will be concluded between a State government and an armed opposition group seeking to overthrow the government or to engineer the secession of part of the State s territory. Interestingly, Common Article 3 of the Geneva Conventions (which contains a minimum set of rules which governments and insurgents have to comply with) contemplates such conventions where it urges Parties to the conflict to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. 38 Ideally, non-state actors are also, one way or the other, involved in negotiating processes in relation to multilateral IHL conventions. This will defuse armed groups argument that they should not comply with IHL on the ground that they have not been involved in designing its rules. As we write, it may not yet be possible to invite insurgent groups to fully participate, on an equal footing with States, in the negotiation process, and to allow them to sign the ensuing conventions. Yet at least some non-state actor involvement in the drafting process is desirable, in the interest of, through creating a sense of IHL ownership for non-state actors, enhancing the legitimacy of IHL and encouraging non-state actor compliance with IHL. Involvement of insurgent groups in treaty-making processes is bound to stoke fears of legitimating insurgent activity in governments minds, however. 39 A fair-minded observer should indeed concede that it is far from obvious that an armed group and the very government which it is fighting against will be able and willing to draft IHL rules in a constructive manner. Undeniably, one should condition the participation of non-state actors in a multilateral treaty-making process on the consent of States. Nonetheless, the hard edges of State centrality in the process could be blunted by devising a participation principle pursuant to which State consent with the participation of armed groups is presumed, and pursuant to which this presumption of consent could only be refuted by a government whose interests are directly implicated by the activity of the insurgent which is seeking inclusion in the process (ordinarily, the government the overthrow or destruction of which the armed group is seeking). In spite of the theoretical appeal of such an inclusive model, however, as soon as one starts thinking practically, one will inevitably face tough questions as to whether the request for inclusion of any armed group, however small, should be deemed eligible, and as to whether the expansion of participants in the negotiating process will not threaten its effectiveness. In any event, as Sassoli has pointed out, even progressive IHL initiatives, such as the one sponsored by the Swiss Government and the Program 36 See also Sivakumaran, above n. 7, at (arguing that the intention of the parties for the agreement to be international in character is relevant, adding that it is irrelevant that the conflict is internal or effective control is exercised by the armed opposition group), 37 Also Sassoli, above n. 23, at 37 (favouring an inclusive approach, also with respect to an outlawed group such as Al Qaeda). 38 Emphasis added. 39 See also Clapham, above n. 11, at 924 ( In the contemporary world, governments are loath to consider their opponents as having obligations as such; governments believe this will elevate their opponents to some sort of legal subjectivity, triggering, not only obligations, but also extra rights for those seeking to undermine or overthrow them. ).

11 on Humanitarian Policy and Conflict Research of Harvard University do not include representatives of non-state actors The scope of IHL in conflicts involving non-state actors So far, we have approached the topic of non-state actors and IHL from the perspective of the non-state actors themselves, and notably their obligations under IHL: how can armed groups be bound by IHL conventions in particular if they have not given their formal consent to be bound? Answering that question, we have argued that, as far as possible, practical consent of non-state actors should be secured. Let us now address the question of when IHL should precisely be applied in conflicts involving non-state actors. Two subquestions come into play here: (1) when does a conflict rise to the level of a (non-international) armed conflict, and (2) does IHL as it currently stands sufficiently accommodate the interests of States in the global war on terror against armed non-state actors? The first subquestion has already been treated well in treaties and the doctrine, and does not need much elaboration here. It is well-known that IHL only comes into play in case of armed conflicts, with non-state actors typically igniting non-international armed conflicts (e.g., an armed opposition group taking up arms against the government). It is therefore crucial for the application of IHL to define the exact legal threshold for such a conflict to exist. It may suffice here to cite Article 1(1) of AP II, the major convention addressing non-international armed conflicts, which requires for the Protocol to apply that the non-state armed group be under responsible command, exercise such control over [a High Contracting Party s] territory as to enable [it] to carry out sustained and concerted military operations and to implement this Protocol. Arguably, the threshold for application of Common Article 3 (the miniconvention addressing non-international armed conflicts) is somewhat lower, as it does not require territorial control. 41 It is also noted that the ICTY has introduced a non-conventional criterion in this respect, by requiring the violence to be protracted for IHL of non-international armed conflicts to apply. 42 It is important to remember that conflicts or violent situations that do not rise to the level of an armed conflict in the technical sense are not governed by IHL. Article 1(2) of AP II clarifies that the Protocol does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature, as not being armed conflicts. This implies that many violent actions by non-state actors, terrorist actions in particular, are not governed by IHL. This does not mean that these actions are not governed by law at all. On the contrary, the entire body of the criminal law may be brought to bear on them, whereas human rights law will guarantee that forcible action by States remains within reasonable bounds. In spite of terrorism being subject to the law, the war on terror has put pressure on the traditional exclusion of terrorism from international humanitarian law. For States, the application of IHL to terrorists has the advantage of the latter becoming legitimate targets of potentially lethal attacks (e.g., the so-called targeted 40 Sassoli, above n. 23, at ICRC, Commentary on the Geneva Conventions of 12 August 1949, Geneva, , p. 35 ( We think that the scope of application of the article must be as wide as possible, thereby rejecting the originally proposed limiting requirements [t]hat the insurgents have an organization purporting to have the characteristics of a State, and [t]hat the insurgent civil authority exercises de facto authority over persons within a determinate portion of the national territory. ). 42 Tadic, above n. 24, para. 70.

12 killings perpetrated by the Israeli Defence Forces). 43 This allows the State to opt out of burdensome criminal justice procedures and the requirement to protect the human right to life of certain non-state actors that are deemed particularly subversive. In some theaters, terrorist actions and massive anti-terrorist operations can nevertheless give rise to armed conflicts, e.g., the asymmetrical wars fought in Afghanistan or Iraq. Even then, IHL is sometimes seen as providing insufficient leeway for States to pursue their aims of flushing out terrorists. It is recalled, however, that, under IHL as it now stands, non-state actors enjoy rather limited protection anyway. If the threshold for an armed conflict has been reached, any civilian (non- State actor) who takes up arms against the government becomes a legitimate target, 44 which implies that any peacetime criminal justice processes can be bypassed. If members of non-state armed groups are captured, they are are not entitled to prisonerof-war status pursuant to the law of international armed conflicts, unless they meet a number of stringent requirements. 45 Under the law of non-international armed conflicts, for that matter, there is not even such a thing as prisoner-of-war status for members of armed groups. If non-state actors are captured on the battlefield, they can, being unlawful or irregular combatants, be detained and prosecuted for their mere act of participating in hostilities. This puts them at a distinct disadvantage vis-àvis regular combatants (belonging to the army of the State). 46 For some States, the limited protection of non-state actors finding themselves on the battlefield still goes too far, and exceptions from this protection are advocated. Those exceptions, as not only advocated but also applied in the wake of 9/11, are well-known, and continue to make headlines in newspapers: the desirability of torture and other inhumane or degrading treatment in order to extract crucial intelligence (e.g., waterboarding), 47 the transfer of detained fighters outside the territory where they were captured (Guantanamo), 48 and the use of military commissions to put 43 See on the requirements for targeted killings to be in keeping with IHL: Public Committee against Torture in Israel and Palestinian Society for the Protection of Human Rights and the Environment v Israel and others, Original petition to the High Court of Justice of Israel, HCJ 769/02, Oxford Reports on International Law in Domestic Courts, ILDC 597 (IL 2006), paragraphs (citing the proportionality criterion in relation to collateral damage of such killings). 44 Art AP I; Art AP II. 45 Article 4(A)(2) of Geneva Convention nr. III. In case of doubt, the person in question is considered as a combatant with POW status (Id., Art. 5.2) 46 The only non-state actors who do enjoy extensive protection are fighters of national liberation movements. Article 1(3) of AP I grants those fighters the same protection as regular combatants in international armed conflicts. As we write, however, few national liberation movements are still active. 47 Such practices violate Common Article 3 of the Geneva Conventions, as it now stands, as well as human rights law. The current U.S. Administration has called for limited accountability for the acts of torture ordered and executed by its predecessor. 48 This practice violates Article 12 GC III, and Articles 49 and 76 GC IV. It is noted that in Boumediene v. Bush, President of the United States, 553 U.S. (2008), the U.S. Supreme Court ruled that the U.S. Constitution applied in the detention facilities of Guantanamo, which the U.S. leases from Cuba, on the grounds that Guantanamo is subject to the de facto sovereignty of the U.S. This implies that U.S. detention policy in relation to detainees captured in Afghanistan is subject to U.S. constitutional constraints. The establishment of U.S. detention facilities in Bagram, in Afghanistan proper, appears to be in keeping with the cited provisions of the Geneva Conventions, however. In addition, it is unclear whether domestic U.S. protections also apply extraterritorially to the Bagram facility. Cf. U.S. District Court for the District of Columbia, Al Maqaleh and others v. Gates and others, Civil Action No , 2 April 2009, available at (court ruling that the privilege of habeas corpus extends to Bagram; the decision was appealed by the Obama Administration, however).

13 captured enemy combatants on trial. 49 It is submitted that carving out exceptions to existing IHL protections for non-state actors should be resisted forcefully. Encouragingly, the U.S. Government appears to have gotten the message lately, and has, albeit hesitantly, shown its willingness to abandon rights-restricting practices Concluding observations In this contribution, the position of non-state actors in IHL has been discussed. Out of necessity, only capita selecta have been covered. The author has chosen two capita that may prove particulary relevant for the wider discussion on the legal position of non-state actors in international law: the question of how non-state actors can be bound by international law, and the question of whether international law always covers the conduct of non-state actors, and if it does so, whether this conduct is sufficiently covered by international law as it currently stands. The first question addresses the legitimacy deficit from which the commands of international law suffer in relation to non-state actors. This is a problem which the present author has fleshed out more thoroughly in another publication; it is a problem which plays out across the whole spectrum of international law for that matter. 51 The only solution to this problem consists of to the extent possible securing the non- State actor s consent to be bound. Theories justifying the binding character of IHL that bypass consent were therefore rejected in this piece. At the same time, some practical proposals for securing non-state actor consent with IHL norms have been put forward. The second question goes to the scope of international law in relation to non- State actors. What activities of non-state actors does international law regulate, and what activities are left to domestic law, or other fields of international law? If international law indeed regulates their activities, does it do so adequately? As far as IHL is concerned, it was recalled that IHL only applies in times of armed conflict. As the criteria for the existence of an armed conflict are rather strict, quite a number of situations involving non-state actors involved in violent activities are not covered by IHL (but possibly by other law). If non-state actor activities are covered by IHL, however, the question arises as to whether IHL adequately regulates their activities. It is not the ambition of this piece to thoroughly research this question. The author only warns for undue encroachment on the protections provided by IHL, and by international human rights law for that matter, in the name of purportedly overriding national or international security interests in the global war on terror. 49 The use of not regularly constituted tribunals, which military commissions, lacking due process guarantees, may arguably be, is prohibited by Article 75 AP I. The U.S. military commissions policy was still under review at the time of writing of this contribution. 50 Cf. the decisions of U.S. courts calling the U.S. Government to account, and the adjustments proposed by the Government, as briefly referenced in notes Ryngaert, above n. 9.