Beyond Compliance Symposium: Armed Groups, Compliance and International Law. There is more than meets the eye

About the author(s):

Ezequiel Heffes is the Director of Watchlist on Children and Armed Conflict in New York. Prior to joining Watchlist, Ezequiel worked for Geneva Call as a Senior Policy and Legal Advisor and for the ICRC in various operational positions in Colombia, Afghanistan and the Democratic Republic of the Congo. He holds a PhD from the University of Leiden, an LLM in IHL and Human Rights from the Geneva Academy, and a law degree from the University of Buenos Aires School of Law. He has widely published on different international law issues. Ezequiel is the author of Detention by Non-State Armed Groups under International Law (Cambridge University Press, 2022) and the co-editor of International Humanitarian Law and Non-State Actors. Debates, Law and Practice (Springer/Asser Press, 2020).

Editors’ note: This post forms part of the Beyond Compliance Symposium: How to Prevent Harm and Need in Conflict, featured across Articles of War and Armed Groups and International Law. The introductory post can be found here. The symposium invites reflection on the conceptualization of negative everyday lived experiences of armed conflict, and legal and extra-legal strategies that can effectively address harm and need. 

@ICRC. Ménaka. Sensitization session of the ICRC and the Mali Red Cross on international humanitarian law (IHL) for combatants of the National Movement for the Liberation of Azawad (MNLA), Mali.

Introduction

Seventy-five years ago, when the 1949 Geneva Conventions were adopted, armed conflicts were very different from those that we see today in Sudan, Myanmar, Syria, Colombia, Central African Republic, and Israel-the Occupied Palestinian Territory, among others. While non-State armed groups (NSAGs) did exist, their regulation was largely considered a matter for the relevant territorial State’s domestic laws. NSAGs were indeed viewed as a “collective of common criminals” that needed to be punished for taking up arms against the State’s legitimate authority (at 6). These non-State actors were only granted some form of recognition if they triumphed in their struggles or were recognized as “belligerents”, a status that meant that the armed conflict would be regulated by the rules that usually applied to State conflicts (at 114-115). 

Much has changed since 1949 in the landscape of armed conflicts. Contemporary discussions consistently raise questions about NSAGs, their behaviours and degree of compliance with international and domestic laws. These queries are expected due to NSAGs’ nature and activities. In particular, they emerge out of their dual nature, as these entities operate at both domestic and international levels, holding different legal statuses in each. While domestically, NSAGs are often labelled as unlawful actors that must be punished, international law remains “agnostic” on their legality, focusing instead on their obligations and conduct in armed conflict situations (at 4).

These dynamics can be observed worldwide, with the International Committee of the Red Cross (ICRC) identifying in 2023 more than 450 NSAGs worldwide as responsible for humanitarian concerns. The ICRC further noted that around 100 NSAGs were engaged in non-international armed conflicts (NIACs), and therefore subject to obligations under international humanitarian law (IHL). In NIACs, NSAGs employ violence to pursue a wide range of objectives, such as controlling a specific territory or population or obtaining financial benefits. They also sometimes create institutions and bodies to deal with the population living under their control and enact internal laws governing these relations. NSAGs form alliances, negotiate agreements, collect taxes, and provide services, including education, health care, justice and internal security. These practices have been widely documented around the world. Through these and other actions, these non-State actors significantly shape the communities and societies where they operate.

At the same time, and most likely as a result of their dual nature and how they are conceived, NSAGs are often perceived as actors that almost exclusively violate their IHL obligations in NIACs. Yet, although NSAGs do sometimes violate these rules for various reasons (e.g., lack of willingness to respect IHL, lack of knowledge and understanding of the applicable rules, lack of capacity, different interpretations of the rules, etc.), in many conflict settings these non-State actors have taken the decision to actually comply with international law. Exploring this point more fully, this post aims to provide explanations and examples to add nuance to the discussion on compliance and restraint by NSAGs in NIACs. 

Reflecting About NSAGs’ Degree of IHL Compliance

Before delving into the specific reasons why NSAGs may decide to respect (or commit to respect) international law, it is imperative to note that these entities have demonstrated varied behaviours in armed conflicts. As mentioned, violations do take place, and NSAGs have been responsible for attacking health care facilities and staff, for recruiting and using children in hostilities, hostage-taking, and obstructing humanitarian aid to those in need in an arbitrary manner. In his 2024 Annual Report on the Protection of Civilians in Armed Conflict, the UN Secretary-General identified NSAGs as responsible for the abduction of civilians and sexual violence, and also for engaging in illicit activities, “such as mining, poaching and logging, contributing to deforestation, soil erosion and loss of biodiversity” (at 7). NSAGs in Colombia have deforested areas of the Amazon to expand illicit crop cultivation and mining activities, which have threatened Indigenous communities (at 7). In Somalia, the Secretary-General has documented that access was hindered by flooding, interference from armed groups in humanitarian efforts, and movement restrictions due to military operations (at 10).

NSAGs have nonetheless also shown varying degrees of compliance with IHL. In certain instances, they have implemented measures to prevent and punish cases of sexual violence. An ICRC study identified that several NSAGs “agree with the need to respect and protect health care”, with some acting on this commitment “by integrating their obligations towards health care in their doctrine, education, training and sanctions” (at 15). In addition, when analysing their behaviour, it becomes clear that their adherence to rules is not absolute. Rather, NSAGs may comply with certain rules while disregarding others, and these practices may be modified throughout the hostilities, resulting in an increase or decrease in NSAGs’ compliance with IHL (at 4).

An important caveat that goes into the core of this analysis relates to the difference between “group-level” decisions and those adopted at an individual/fighter level. The focus of the reflections contained in this piece is on NSAGs as “groups”, which entails the examination of the former as cohesive and single entities.

Why Do NSAGs Decide to Comply with IHL?

As Bangerter has noted, “[t]he decision to respect the law – or not – is far from automatic”, and this is regardless of whether it is taken by a NSAG or a State (at 356). Nonetheless, three explanations can broadly be identified as to why these non-State actors may decide to comply with IHL: (1) to enhance their reputation and gain support from international stakeholders; (2) to improve their standing and secure support from local constituencies; and (3) when local norms, including customary or religious ones, align with their IHL obligations.

With respect to (1) and (2), studies based on NSAGs’ practices suggest that legitimacy-seeking groups are more likely to comply with international law than legitimacy-indifferent ones. In Bangerter’s words, “[s]elf-image is one of the most powerful generators of respect for IHL” (at 358). When NSAGs seek legitimacy “in the eyes of key audiences with preferences for rules consistent with international standards”, Hyeran Jo explains, “then we are likely to see rebel compliance” (at 19). She defines rebel legitimacy as “support and recognition that a rebel group is a viable political authority” (at 27).

Regarding NSAGs’ reputation from international stakeholders, the international community, formed by States, international organisations, and humanitarian actors, is one from which this legitimacy is sought. Several groups have demonstrated their commitment to respecting IHL by signing documents with the UN, Geneva Call, States (including the ones against which the respective NSAG was fighting), and humanitarian organisations. Additionally, they have adopted laws and regulations to showcase their willingness to comply with this international legal framework. For instance, the Moro Islamic Liberation Front (MILF)’s approach to the use and recruitment of children changed at the time it entered into an Action Plan with the UN, which was followed by a Supplemental General Order by the NSAG’s leadership to “operationalize its undertakings within the ranks of the organization” (at 41). NSAGs have signed Geneva Call’s Deeds of Commitment on various themes, such as on the protection of children, and education and health care in conflict (here, here, here and here). The Syrian Democratic Forces/Autonomous Administration of North-East Syria has engaged various international stakeholders on IHL (and other international legal regimes). In 2014, this group signed three of Geneva Call’s Deeds of Commitment, adopting in parallel internal rules that included IHL and international human rights law provisions. Furthermore, in 2019 it signed an Action Plan with the UN to End and Prevent the Recruitment and Use of Children. 

NSAGs may also decide to comply with their IHL obligations when seeking support from local actors and constituencies (at 14-15). Indeed, these non-State entities may avoid deliberately attacking civilians living under their control, recruiting and using children from those communities or committing sexual violence against them in an effort to gain support and improve their standing. Similarly, they may also try to regulate local disputes and establish some form of “governance”, which has been defined as “the manner in which an insurgent group regulates life within a defined territory and provides public services” (at 40). At the same time, it is important to recognise that attempts to gain local support and legitimacy can sometimes undermine compliance with certain IHL rules, notably when a NSAG prioritises the interest of a specific social group at the expense of another one (at 15). 

Finally, when local norms and values in the contexts where NSAGs operate align with IHL, there is a good chance that groups will comply with this international framework. This was explicitly recognised in the last ICRC IHL and Challenges of Contemporary Armed Conflicts report, where it is affirmed that 

to effectively communicate and anchor the protection owed to people affected by armed conflict during their dialogue with armed forces and non-state armed groups, humanitarian organizations can also draw on norms, ethics, and standards from cultural traditions and practices, as well as other legal frameworks such as Islamic law, when there are points of correspondence with IHL (at 77).

A few examples serve to illustrate this. In Mali, for instance, the Mouvement National de Libération de l’Azawad (MNLA), adhered to its own “values, local norms and customs”, which largely coincide with commonly “agreed rules of behavior” (at 4). These principles were embodied in a traditional Tuareg code of warfare, known as Achak, which explicitly prohibits attacks on unarmed men, women, children, and the elderly (at 19). The MILF, in the Philippines, established a committee of Islamic scholars to study IHL and compare its rules with the Sharia, finding that “it was straightforward to accept most of the core precepts of IHL” (at 17-18).

Concluding remarks

As we reflect on the effectiveness of IHL on the 75th anniversary of the 1949 Geneva Conventions, and examine the role and activities of NSAGs, there is a key observation that is worth noting for this symposium. It pertains to the behaviour of these actors in NIACs. This brief reflection aimed to highlight that, while NSAGs have been responsible for numerous IHL violations across conflicts worldwide, their conduct is far more complex than it might initially seem. There is indeed more than meets the eye, and NSAGs have, in certain contexts and to varying degrees, demonstrated a commitment to complying with IHL. A study published in 2022 on the practice and interpretation of various NSAGs with respect to this international legal regime indeed highlighted that the majority of analysed entities “manifested some form of acceptance of IHL rules, some of them from the beginning of their struggle”, while others have “significantly changed their attitudes, at least towards some norms, over the course of the armed conflicts in which they have been engaged” (at 34).These scenarios of compliance have led key international institutions to confirm the importance of engaging NSAGs on IHL-related issues. The UN Security Council has recognised “the need for consistent engagement by humanitarian agencies with all parties to armed conflict for humanitarian purposes, including activities aimed at ensuring respect for international humanitarian law” (at 4), while the UN Secretary-General affirmed that “[h]umanitarian engagement with non-State armed groups is indispensable for gaining safe and timely access to populations living under their control or influence, and for promoting respect for international humanitarian law” (at 65). As a result, it is imperative to continue studying these practices for the design and implementation of context-specific strategies aimed at improving IHL compliance and protection of individuals.

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