The participation of community-based armed groups in NIACs: How to assess the intensity criterion

About the author(s):

Mario Pasquale Amoroso is an LL.M. candidate at the Graduate Institute for international and development studies, specializing in humanitarian, criminal and human rights law. He holds a master’s degree in law from the University of Naples "Federico II", where he focused on Public International Law.

In recent years, data collected by the International Committee of the Red Cross (ICRC) has shown that the number of non-State armed groups (NSAGs) of humanitarian concern has remained consistently between 500 and 600, an increase compared to previous decades. In many conflict areas, several NSAGs co-exist in the same territory and compete or cooperate with each other. When different NSAGs cooperate against a common enemy, the resulting fragmentation of hostilities may complicate the distinction between groups that are parties to a conflict and those that are not, if they do not all separately meet the thresholds for participation required under IHL.

Within the general category of NSAGs, relatively little legal attention has been paid so far to community-based armed groups (CBAGs). The term refers to groups that operate within small communities to protect them from external threats, and whose function may change over time. More precisely, the RESOLVE Network Report identified CBAGs as a subset of the broader category of NSAGs defined by their relationship to the territorial State or the local community in which they are deeply embedded. As evidenced by the ICRC’s study on The Roots of Restraint in War (p. 54), they are usually made up of a small number of individuals who band together to defend the interests of the community and are characterized by a “flat hierarchical structure” and frequent changes of authority. The  Dan Na Ambassagou, who operate alongside traditional hunter groups in Mali, are one of the most recent examples of militias formed in fragile States to defend local communities against jihadist groups. Similarly, the  Tuareg and Zarma communities in Niger have recently mobilized to protect their people from the Islamic State in the Greater Sahara. These groups have shown an increasing tendency to form alliances with other CBAGs or with conventional armed groups. 

The ICRC has recently examined whether it is possible to aggregate joint military actions for the purpose of assessing the intensity criterion in the classification of armed conflicts with regard to NSAGs in general. The central question of this blog post is therefore: is it possible to apply the same approach to CBAGs? After shedding some light on the types and different operational phases of CBAGs, this post seeks to examine whether aggregation of intensity can be a viable method for classifying CBAGs under the law of armed conflict.

Community-based armed groups: a difficult categorization 

Two characteristics are common to all CBAGs: 1. Informality, meaning that their creation is rarely accompanied by any official act of procedure; 2. Parochial objectives, meaning that their goals are limited at advancing the local ambitions of their stakeholders. Although they are characterized by a particular fluidity, Schubert further distinguished three dimensions that these groups can adopt: a. security; b. political; c. economic. The first dimension usually leads to the formation of vigilante groups that take on security functions “in circumstances where a State’s own security institutions are not responding well to the threats”, including for example in the event of State failure. Members of these groups may be involved in both offensive and defensive activities, aimed at protecting communities from attacks by other NSAGs or military forces. Political CBAGs, on the other hand, are more likely to emerge where the State or other local actors induce community members who exercise authority based on tradition or charisma to form militias under State control. Finally, the economic dimension is generally associated with criminal gangs that, rather than promoting the interests of the community from which they originate, pursue economic interests. Yet, they may also engage in local conflicts against other NSAGs in order to gain power and control over territories for economic purposes. Of course, these dimensions are sometimes intertwined and CBAGs may pursue different objectives at the same time.

The different operational phases of CBAGs 

Considering this categorization and comparing it with data extracted from the RESOLVE Network reports, it can be observed that these groups tend to go through different phases in their life.

1) In the first phase of their existence, the security/defense dimension prevails, and CBAGs are usually formed spontaneously to protect their community. 2) With time, success in defending local communities may encourage other groups in similar circumstances to join clashes, bringing with them weapons and military equipment. 3) Once the defensive objectives have been achieved, CBAGs can follow one of two paths: a. form criminal gangs, transforming their security function into economic goals; b. become auxiliaries of State authorities: the growing influence of these groups could indeed lead to government intervention aimed at controlling them to respond to common enemies in exchange for money or authority over territories.

This classification is of course indicative and based on the consideration of CBAGs in different contexts. Not all CBAGs go through these stages, but several groups, such as the Civilian Joint Task Force in Nigeria and the Arrow Boys in South Sudan, have followed this path. The classification proposed above may therefore prove useful in analyzing how the intensity criterion applies to CBAGs based on their different operational phases.

Methods to aggregate intensity.

As is well known, the classification of NIACs is based on two criteria: a. the parties to the conflict must show a certain degree of organization; b. the armed violence must reach a certain degree of intensity. With regard to CBAGs, the requirement of organization must be assessed according to the same criteria as for other NSAGs. The ICTY relied on indicative factors to assess the organization of NSAGs, such as the existence of a command structure and disciplinary rules, the operational and logistical capacity of the group, and the ability to identify a unified strategy and speak with one voice. It is realistic to expect that only a small number of CBAGs would meet these criteria especially in their initial phase, given the characteristics identified above. It is therefore important to emphasize that the examination of the intensity criterion that follows, applies only to NSAGs that meet the organization criterion.

In order to apply the intensity criterion to a multitude of cooperating NSAGs, two solutions are available: a. the intensity is assessed individually for each bilateral belligerent relation (fragmented approach), b. the assessment is carried out taking into account the collective nature of the activity, i.e., “aggregating” the intensity of several belligerent relations. 

The second solution may prove to be particularly useful to avoid the risk of under-classification, that is, classifying as internal disturbances and tensions activities that collectively contribute to an armed conflict. In its 2019 Challenges Report (p.51), the ICRC recognized  that “when several organized armed groups display a form of coordination and cooperation, it might be more realistic to examine the intensity criterion collectively by considering the sum of the military actions carried out by all of them fighting together”, thereby ensuring the application of the IHL protective regimes. 

Nikolic, de Saint Maurice and Ferraro took this as their point of departure in examining the case of coalitions of armed groups. They suggested that the existence of a coalition could be assessed on the basis of indicators such as: a. the establishment of a centralized joint command; b. the sharing of operational tasks; c. the exchange of tactical and strategic information; d. the coordination of simultaneous attacks against a common enemy. However, the instability that characterizes these non-State alliances pushed others to propose of a more flexible approach. Kleffner, for example, considers the aggregation of intensity theory to be applicable in all cases where NSAGs engage in hostilities on a geographical and temporal continuum.

Since the latter method could lead to an excessively loose application of IHL norms, Redaelli  proposed an intermediate solution: according to this author, an additional factor should be taken into account in the assessment, namely the existence of a common enemy. This makes it still possible to aggregate intensity even in the absence of a coalition, thus avoiding falling back on a fragmented approach. 

How to evaluate intensity in relation to CBAGs

With these three different options in mind, the operational phases of CBAGs will be re-examined below in order to assess which alternative produces results consistent with the humanitarian object and purpose of IHL. 

1. In the first phase of their existence, CBAGs tend to focus on protecting local communities and are rarely involved in alliances with other groups. At this stage, the confrontation could hardly meet the intensity criterion, given the limited geographical scope of the clashes, the reduced involvement of government forces and the types of weapons used, which are usually small and rudimentary.

2. In the second phase, their success and the emergence of other groups makes the aggregation of violence an option to be considered in the assessment of the intensity criterion. At this stage, CBAGs may merge into a single entity or cooperate while maintaining their autonomy. If they form a single unit, with unified command and shared resources and objectives, the assessment of intensity can be carried out as usual, without the need for aggregation. However, even when CBAGs cooperate and do not merge, practice shows that they share military means and operational tasks aimed at carrying out attacks against the same enemy. Therefore, to classify the situation as internal disturbances and tensions when these groups do not meet separately the required degree of intensity would be counter-intuitive and inconsistent with the protective purpose of IHL. The possibility of aggregating violence, taking into account the expanded geographical scope of the conflict, the involvement of an increased number of heavy weapons, and the scale of destruction, seems a more reasonable solution. Therefore, Redaelli’s proposal seems to be the one that better reflects the operational reality of CBAGs.

3. The third phase of CBAGs’ existence leads instead to different situations. If CBAGs evolve into criminal gangs, their violence should still be aggregated with that of allied non-State actors (be they criminal groups or NSAGs), since IHL does not require that armed groups pursue a political objective in order to be classified as parties to a conflict. In this case, although the two groups may have different strategic objectives, they would still collaborate in the short term by sharing the same operational objective, for example removing armed forces from a particular area. The case of State control over CBAGs (the so-called “political” dimension mentioned above) raises instead an additional question: is it possible to aggregate intensity in the case of coordination or cooperation between a State and a non-State actor? I am referring here to cases where the group cooperates with the State without its conduct being attributable to the State under Article 8 of the Draft Articles on the Responsibility of States. In my view, the answer should be positive, since the principle of equality in IHL, and the same definition of NIAC given by the ICTY in the Tadic case as “protracted armed violence between government authorities and organized armed groups or between such groups within a State” show that governments and armed groups are parties to NIACs on an equal footing. This suggests a more flexible approach to conflict classification, that takes into account the possibility of cooperation between States and NSAGs, at least in the case of States-controlled CBAGs. State coordination with CBAGs should make it possible to aggregate of intensity in the same way as examined under 2) above.

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The proliferation of CBAGs allows for a better understanding of their characteristics, also with a view to appraise their involvement in internal clashes in order to apply IHL and avoid protection gaps. These groups provide an opportunity to reflect more deeply on the many ways in which the aggregation of intensity theory can be applied. The observations presented in this paper could be taken up, with the necessary adaptations, in cases involving other types of NSAGs, suggesting a gradual shift away from the fragmented approach in contexts where the number of armed groups operating in the same territory requires an examination of the multilateral relationship between all actors sharing the same objective.

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