About the author(s):
Dr Saeed Bagheri is Lecturer (Assistant Professor) in International Law at the University of Reading School of Law, where he also held a Postdoctoral Research Fellowship from 2019-2021. Prior to joining the University of Reading, he was a Max Weber Postdoctoral Research Fellow at the European University Institute (EUI) from 2017-2019. Saeed conducts research in the law on the use of force and international humanitarian law and teaches across a range of modules on law programs. He is the author of International Law and the War with Islamic State: Challenges for Jus ad Bellum and Jus in Bello (Oxford, Hart Publishing, 2021).
On July 22, 2024, the Shia Islamist political and military organization known as the Houthis in Yemen concluded a new special agreement with the internationally recognised government of Yemen to de-escalate tensions between the two sides. It demands initiating the convening of meetings to discuss both economic and humanitarian issues, especially the release and repatriation of conflict-related detainees. The new agreement comes after the roadmap set out by the United Nations (UN) in December 2023, which has required the two sides to bring the ongoing non-international armed conflict (NIAC) in Yemen to an end.
While serious questions remain on the Houthis’ obligations concerning the peace process in Yemen, this post will shed conceptual light on whether and, if so, to what extent non-State armed groups (NSAGs) like the Houthis in Yemen have legal capacity to conclude agreements with States, especially with regard to humanitarian issues and individual protection in the course of NIACs.
Conceptualising the issue
To begin with, for an entity to be recognised with legal personality it has to be able to enjoy rights and be bound by legal obligations. Legal personality enables such an entity to possess the legal capacity to amend, enter into, transfer, and implement rights and obligations (ICJ Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations, 1949: 179).
Although States are the primary legal entities and subjects of international law with the power and capacity to make treaties, they can also conclude agreements with non-State entities, such as NSAGs, international organizations, individuals and people who acquire legal personalities and struggle for equal rights. Relatedly, Common Article 3(3) of the 1949 Geneva Conventions is intended to provide a direction on the customary obligation, providing that “the Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.”
It is worth, though, noting that treaties as the primary source of international law are contemplated as agreements that can only be concluded between sovereign States and in some cases international organisations in written form where they intend the document to be binding under international law. The 1969 Vienna Convention on the Law of Treaties proceeds on the assumption that a ‘treaty’ can be concluded between two or more States (1969 Vienna Convention on the Law of Treaties, art. 2(1)(a)). However, it also acknowledges that there may be treaties outside of its scope of application and that there may be international agreements concluded between States and other subjects of international law or between such other subjects of international law (1969 Vienna Convention on the Law of Treaties, art. 3). So far as the international law of treaties is concerned, the right to enter into international agreements is an attribute of State sovereignty, which has also been reaffirmed by the Permanent Court of International Justice in its advisory opinion on the Exchange of Greek and Turkish Populations (PCIJ Advisory Opinion on Exchange of Greek and Turkish Populations, 1925, para. 55).
Special agreements under Common Article 3
Seemingly, the ICRC commentary on Common Article 3(3) considers special agreements between States and NSAGs as binding instruments without touching on the significance of the legal status of such instruments as ‘treaties’ within the meaning of the law of treaties. When it comes to the obligation to respect and ensure respect for IHL, the centre of interest becomes purely individual protection during NIACs rather than the legal status of those agreements concluded between the parties. Having looked beyond the facts, the ICRC commentary contains a questionable interpretation of Common Article 3(3), asserting that it cannot be deduced that the recognition of the capacity to conclude special agreements bringing into force additional obligations in the Conventions implies recognition of belligerency or in any way signifies that the NSAG party to the agreement possesses full legal personality. The commentary argues that it is quite common for parties to special agreements to reiterate that the agreement does not affect their legal status. In view of this, although it is perfectly reasonable to believe that most NSAGs like the Houthis generally represent a group of people in Yemen fighting for equal rights with a variety of economic and political desires, they possess legal objectivity to the degree that they can only conclude special agreements as subjects to domestic law or as IHL subjects.
Stated differently, although States and NSAGs are bound to observe customary Common Article 3, States may treat NSAGs as subject to their domestic law, except to the extent that a particular rule of domestic law directly conflicts with any of the provisions of Common Article 3 (UK Manual of the Law of Armed Conflict, 2004, para. 15.4.1: 388). The idea of the treatment of NSAGs under domestic law was also affirmed by the Special Court of Sierra Leone, whereby the special agreement concluded between the government of Sierra Leone and the Revolutionary United Front, is not an international agreement (Heffes & Kotlik, ‘Special Agreements As a Means of Enhancing Compliance with IHL, 2015: 1212). But since civilian protection and humane treatment are normatively regarded as being the ultimate object of the agreement, it would not be technically a problem whether there is a difference between how the agreement is regulated (under what legal framework) and what is the status of the parties.
In any event, adherence to such an agreement in no way confers the status of a belligerent on the opposing party (Fortin, The Accountability of Armed Groups under Human Rights Law, 2017: 43). In the end, special agreements between States and NSAGs arguably create obligations, irrespective of whether or not they constitute treaties under international law. This is evident from the practice of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Commission of Inquiry on Darfur as they considered the special agreements between the parties to the conflict under their jurisdiction binding and akin to treaties and thus as sources of legal obligations to sustain a conviction.
Nature of Common Article 3 obligation
Despite the legal validity of special agreements between States and NSAGs as subject to Common Article 3, it worth being explicit that States do not have a legal obligation to make such agreements with NSAGs. Rather, doing so under the provision of Common Article 3 is in essence a voluntary act. Yet, even concluded agreements between States and NSAGs have not always been considered to be ‘treaties’ under international law. Relatively, they have been generally contemplated as instruments capable of imposing binding obligations and rights between the parties to the agreement in domestic law.
Against this backdrop, Common Article 3(3) and the ICRC commentary encourage States to conclude special agreements with NSAGs, emphasising that such agreements would not alter the conflict parties’ legal status, which allows the territorial State to keep underestimating the objectives and demands of those groups by considering them illegal entities under domestic law. In some ways, however, both Common Article 3(3) and the ICRC commentary shied away tacitly from the fact that territorial States’ refusal to recognise the legal status of NSAGs as parties to NIACs and their concerns on the one hand and punishing IHL violations committed by NSAGs on the other would trigger violence rather than ensure humanitarian protection. Yet the customary obligation to ensure respect for IHL would require States to avoid putting any obstacles in place with respect to NSAGs’ compliance with IHL. This is undeniably an unintended reflection of a State-centric approach to IHL due to the flawed framework of Common Article 3. This ultimately capsizes the main function of IHL norms – lex lata – and requires reinterpretation of the obligation to ensure respect for IHL within the meaning of both Common Article 1 and Common Article 3 – lex ferenda – to restore the objectivity of special agreements concluded between States and NSAGs.
Note again that Common Article 3(3) encourages the parties to NIACs to conclude special agreements in the interest of civilian protection. Having said this, one can undoubtedly recall that Common Article 3 is referred to as the law applicable to NIACs between governmental authorities and NSAGs (Yemeni government and the Houthis in our scenario). Even so, it remains an open question as to whether NSAGs would consider making special agreements with territorial States in cases in which the State in question neither recognises the existence of a NIAC with NSAGs nor treats them as ‘parties to an armed conflict’ under IHL.
Conclusion
Indeed, Common Article 3 of the 1949 Geneva Conventions has utilitarian value. It does, nevertheless, suffer from a lack of clear instructions on how non-recognition of the existence NIACs would undermine civilian protection and respect for IHL. The lack of insight in Common Article 3 is pronounced as a classic source of interpretation such as commentaries to the Geneva Conventions. What is more, ambiguity and the State-centric nature of Common Article 3(3) in relation to making special agreements with NSAGs have become challenging and questionable for reinterpretation as perceptions on the nature of conflicts and legal status of NSAGs involved in armed conflicts with governments continue to evolve.