Deborah Casalin is a PhD researcher in the Law and Development Research Group at the University of Antwerp Faculty of Law. She previously worked for several years in the humanitarian and development sectors, mainly on issues relating to IHL and human rights, and has previously published on armed group detention under IHL. This contribution draws on her recent chapter Legal Obligations of Non-state Armed Groups and Sustainable Development Goal 16, in Walter Leal Filho et al, Peace, Justice and Strong Institutions: Encyclopedia of the UN Sustainable Development Goals (Springer, 2021).
Introduction
Are people living under armed group control merely beneficiaries of basic humanitarian protection? Or are they still rights-holders, who may make claims against entities with power over their lives – and even perhaps aspire to development, within the constraints of the situation? From the latter starting point, this post addresses the situation of people living under armed group control from the perspective of Sustainable Development Goal (SDG) 16 (Just, Peaceful and Inclusive Societies / Peace, Justice and Strong Institutions), a goal with clear relevance for people in armed conflict situations. For purposes of this goal, it would certainly be ideal to have no armed conflicts and no armed groups to participate in them. But readers of Armed Groups and International Law will be well-acquainted with this kind of conundrum: what can be done to improve the situation of civilians under prevailing circumstances, short of ending all conflicts and demobilizing all armed groups by the SDG deadline of 2030?
The aim of this post is to explore which targets within SDG 16 could still be promoted in favour of people living under the de facto control of armed groups, pending conflict resolution. Firstly, it maps some of the impacts of armed conflict on SDG 16 targets. Secondly, it examines which of these impacts can be addressed by armed groups. Thirdly, it outlines the legal bases for potentially engaging armed groups towards these goals. In concluding, it suggests how the SDGs might support promotion of the well-being of civilians living under armed group control.
Armed conflict and Sustainable Development Goal 16
Tens of thousands of people are killed in conflicts every year, amongst which record numbers of children, who may be vulnerable to abduction, sexual violence and forced recruitment. Birth registration is often impeded during conflict, which facilitates such serious abuses. Conflict also creates a conducive environment for diversion of arms, illicit financial flows and corruption, which are in turn connected to arms supply. Thus, armed conflict in itself negatively affects various Sustainable Development Goal 16 targets – in particular, the objectives of reducing violence and related deaths, exploitation of children, illicit arms flows and organized criminal activity; as well as the aim of ensuring legal identity for all. The activities of armed groups – which are part and parcel of the majority of contemporary armed conflicts – are (often rightly) considered to be especially harmful to these goals. Indeed, since armed groups already operate beyond the pale of domestic law, they may engage in illicit activities to sustain themselves, such as unlawful mining or logging, or trading in prohibited goods to procure arms illegally. Their operating methods in conflict may also rely on prohibited activities such as violence against civilians or recruitment of children. However, armed groups in conflict situations are often already beyond the reach of state justice systems, and may have control over territory and resources, as well as the daily lives of civilians. It is in such situations that they have especially significant influence over the SDG targets mentioned.
Sustainable Development Goal 16 without a state: what is still possible?
The SDGs are not a legal instrument outlining rights and obligations, but a set of objectives which are in principle for the benefit of all people, regardless of who governs them. As such, they do not have a clear addressee. However, the SDGs are an agenda which has been adopted by UN member states, and are therefore formulated from a state-centric perspective. SDG 16 is a clear example of this, as especially its “justice and strong institutions” aspects presuppose the presence of state authority, and relate to issues which are closely connected to the core functions of the State. This can be seen, for example, in the various targets which require action in accordance with national legislation or in international fora, or those relating to institution-building, governance or law enforcement.
Nevertheless, there are a few elements of SDG 16 that do not inherently require state authority to work towards their achievement. In conflict situations, besides having a negative impact on these targets, it may also be within the capacities of armed groups to contribute to their achievement. These targets include reduction of violence and violent deaths, protection of children, and ensuring legal identity for all. External actors already engage with armed groups towards certain aspects of these targets – and what is more, some armed groups have shown themselves willing and able to modify their operating methods so as to reduce civilian killings, halt the recruitment of child soldiers, and facilitate birth registration.
On what legal bases can armed groups be engaged towards achieving (parts of) SDG 16?
Above, we have seen that effective state authority is not a prerequisite for working towards important elements of at least three SDG 16 targets – i.e. reducing violence and related deaths, protecting children from violence and exploitation, and ensuring legal identity for all. These targets coincide to a large extent with armed groups’ established international humanitarian law (IHL) obligations. Therefore, there is room for external actors to work towards these targets through humanitarian engagement on the basis of Common Article 3, which aims at promoting compliance with these rules. For example, the reduction of violent deaths could be addressed via NSAGs’ obligation to respect the principle of distinction; the protection of children via prohibitions on recruitment and participation of children in hostilities, as well as obligations regarding family reunification and special protection; and ensuring legal identity via humanitarian access obligations, as birth registration may be integrated into broader humanitarian assistance activities.
Of course, it is increasingly recognized that non-state armed groups may have even further-reaching human rights obligations in situations where they control territory and the daily lives of populations, even in relation to issues that have little to do with the conflict. Therefore, depending on the context, armed groups may be required to do more than what is outlined above (e.g. protecting people living under their control from violence or exploitation by third parties). In terms of international law, nothing prevents local populations from claiming these rights vis-à-vis an armed group. However, the extent to which external actors can engage to support them might vary according to the context, as rights-based or developmental activities could be constrained by State or armed group interpretations of the boundaries of humanitarian access; the international law principle of non-interference in internal affairs; and/or international or domestic counter-terrorism regulations. Where these activities cannot be integrated into an expanded understanding of humanitarian engagement, it may be necessary to conduct them in terms of a bilateral agreement with the territorial State or under a UN mandate. However, while this may work for humanitarian-adjacent activities, it is still difficult to envisage state agreement to external engagement on the “justice and strong institutions” aspects of SDG 16 – even where armed groups have in practice taken charge of decision-making, public order and welfare, and institutions such as courts and prisons. Still, basic IHL protections for people in detention or undergoing trial (e.g. humane treatment, limiting use of the death penalty) may be promoted via classic humanitarian engagement.
Conclusions
While SDG 16 may seem completely incompatible with situations of armed conflict – and especially those involving armed groups with control over people and territory – a closer observation reveals a number of important aspects which can be worked on even in the absence of State authority. On some issues with far-reaching effects on basic rights and well-being – such as civilian killings, child protection and birth registration – IHL provides the bases and parameters for engagement, which has already proved successful in many situations. More may be demanded in terms of human rights where armed groups exercise control over territory, institutions, and civilian life, although external engagement may more easily run into international, state or armed group restrictions.
But if even human rights runs into difficulty in situations of armed group control, what can the SDGs bring to the table? There are possibilities from two different perspectives. Firstly, from the perspective of promoting civilian protection in a broad sense, the SDGs – as a set of broad objectives which are not framed as legal obligations – might in some contexts provide less contentious entry points for engagement than human rights. This may in turn facilitate setting the bar higher on civilian protection, especially on issues less closely connected to conflict. Secondly, from the perspective of SDG implementation, those involved in this process (including States) should be taken up on their commitment to leave no-one behind, including people living in conflict or under armed group control. In such contexts, partnerships for the goals should at least include those with access to and expertise in these areas – where possible, even going beyond international actors to support local organizations working for the rights and welfare of civilians.