About the author(s):
Annyssa Bellal is the Strategic Adviser on International Humanitarian Law at the Geneva Academy of International Humanitarian Law and Human Rights and a Senior Lecturer in international law at Sciences Po, Paris. She also acted as legal adviser for the NGO Geneva Call, the Office of the UN High Commissioner for Human Rights, the Swiss Department of Foreign Affairs and for the International Committee of the Red Cross where she was the acting Head of the Customary International Humanitarian Law Project. In 2012, she was an Assistant Professor at the Irish Centre for Human Rights in Galway. Dr Bellal was awarded several fellowships for her research, notably from McGill and New York University. She was the editor of The War Report 2014, published by Oxford University Press, and the author of several articles on various IHL and human rights law issues, including an award-winning article on ‘International Law and Armed Non-State Actors in Afghanistan’ (International Review of the Red Cross, 2011, SNIS Geneva Award 2011).
The 2019 ICRC so called ‘Challenges Report’ has identified the ‘proliferation of non?State armed groups’ (NSAG) as being a central feature of ‘the changing geopolitical landscape of the last decade’. It is undeniable that the existence of a multiplicity of NSAG in a given context creates serious challenges for humanitarian and aid organisations, not only from an operational, but also from a legal point of view as discussed in the ICRC report.
I am grateful to the editors of this great blog to have given me the opportunity to sketch some thoughts of this complex matter. In this short piece, I will argue that it is time to consider the existence of NSAG not only as a challenge, but also as an opportunity for better and more effective protection of the persons living under their control.
Words matter
NSAG considered as a challenge, as a ‘negative phenomenon’ is implicit in the word ‘proliferation’ used not only by the authors of the report, but also more generally in policy papers. While being a neutral term per se, when something ‘proliferates’, it is usually not a good sign. The online venerable Larousse French dictionary, defines proliferation as the ‘rapid multiplication of living beings or things’, as in ‘the proliferation of cockroaches’, the Oxford Learners dictionary speaks of the proliferation of cancer cells. In a closer context from us, the international community has tried to address for years the ‘proliferation of nuclear weapons’. Given the implicit connotation of the word, it should not come as a surprise that speaking of the proliferation of NSAG can sometimes be perceived negatively like the uncontrollable spread of a disease – or worse disgusting insects – having unfathomable consequences for the international community. To push the comparison further, because NSAGs are often associated with terrorism, there is only a small step, that States will easily take, leading to the discourse that all means, even the most radical, are needed to combat this disease and the threat caused by the proliferation of its dangerous cells.
That being said and oddly, the Larousse dictionary also associates the word ‘proliferation’ with the ‘apparition of a flower button.. on the part of a plant which usually does not have one’. In that sense, the proliferation of NSAG could be the signal that changes are needed in a society or even inaugurate new beginnings, like the emergence of rosebuds in a previously dry and hostile environment. One could wonder why then, before ‘proliferating’, do NSAG appear at all or in other words, why do individuals seem to resort more to collective armed violence today than ten years ago as the ICRC report notes?
The causes of the collective resort to armed force
Obviously, this question is beyond the scope of the Challenges report and of the present modest contribution. Suffice to note that there are of course many reasons why individuals decide to join NSAG or are forced to join them, going from ideology, access to economic resources to peer-pressure. Human rights violations are also well-known reasons leading to internal dissent that can transform into non-international armed conflicts, as exemplified by at least two of the most recent conflicts, where numerous NSAG operate (in Syria and Libya) which were born out notably of the repression of the Arab Spring movement. In these last scenarios, because of the grassroots origin of the uprisings, NSAG are often very close to their constituencies, at least at the beginning of the conflict and it is often human rights law that is the main referent of NSAG involved in the conflict. For example, the ‘Free Syrian Army’ proclaimed their commitments to ‘the principle of non-discrimination, equality, freedom of expression, thought and conscience as well as on the freedom of association and assembly, among other human rights. The reference to human rights law by NSAGs is not unique to groups fighting to react to repressive regimes. The Colombian NSAG FARC-EP ‘Rules of Conduct with the Masses’ of 2009, encourages the group to ‘respect the political, philosophical, and religious ideas and attitudes of the population, and in particular the culture and autonomy of indigenous communities and other ethnic minorities’ and ‘not prevent people from exercising their right to vote, nor force people to vote’.
Human rights law and NSAG
From these few cursory examples, one can observe that some NSAG at least commit or claim to respect human rights in addition to – or sometimes rather than IHL. It is within this context, that I would like to discuss the relevant paragraphs of the ICRC Challenges Report on the ‘protection of the human rights of persons living in territory under the de facto control of armed groups’ (p. 54). I will not repeat here the legal and theoretical arguments developed extensively by the scholarship, including by one of the editors of this blog, on whether NSAG are bound or not by human rights law. Whatever the position adopted by humanitarian organisations on a de jure or de facto recognition of the human rights responsibility of NSAG, it seems logical to look at what these actors have to say on the matter in the first place, rather than imposing on them a pre-conceived legal framework that does not reflect their needs, characteristics or own commitments. Including NSAG in the discussion about the scope of their human rights, but also IHL obligations would also increase the effectivity of the legal system, which is supposed to govern their behaviour and inform meaningful strategies of engagement. This seems even more true as it has been shown that some NSAG have in fact also respected international norms in certain circumstances.
The importance of capacity building
If one talks about the human rights responsibilities of NSAG, capacity building is relevant. As the Challenges report notes: ‘while non?State armed groups are, clearly, able to refrain from violating basic human rights, many will not have sufficient capacity to comply with the more sophisticated obligations deriving from human rights law, in particular obligations to take positive measures to protect and fulfil human rights’. I believe that an NSAG that exercise ‘stable control over territory and is able to act like a State authority’ – the type of actor for which the ICRC would recognise de facto human rights responsibilities – would possess the necessary capacity to fulfil positive obligations, at least in no lesser extent than weaker or poorer States. It is clear that not all NSAG possess enough resources to implement capacity-intensive international obligations (or positive obligations). Here it should be reminded that this is not only an issue for human rights law. Some IHL norms also require a certain level of resources or capacity to be implemented, such as conducting fair trials or collecting and protecting the wounded and sick as required by Common Article 3, or providing for education under AP II. In that regard, the ICRC position to recognise at least at as a matter of policy the human rights responsibilities of NSAG that control territory and perform state-like functions should be welcomed. It should convince human rights organisations, including the OHCHR, to engage with NSAG on capacity-building and overcome State political pressures. Such support, for a better implementation of human rights will benefit the persons living under the control of NSAG and enhance the rule of law, especially in situations of protracted situations of armed violence. To this end, the perception that the international community have of NSAG must change. These actors should be considered in some circumstances also as partners, or at a minimum as capable of producing positive outcomes even conducing to transitional justice and peace processes and not only as violent actors, which ‘proliferation’ should be controlled.