About the author(s):
Ezequiel Heffes' research focuses on international law and non-State actors. He was the Director of Watchlist on Children and Armed Conflict in New York. Ezequiel also 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) and of Armed Groups and International Law. In the Shadowland of Legality and Illegality (Edward Elgar, 2023).
This post forms part of phase two of the Beyond Compliance Symposium: How to Prevent Harm and Need in Conflict, hosted by the Armed Groups and International Law blog. The introductory post can be found here. The symposium invites reflection on the conceptualisation of negative everyday lived experiences of armed conflict, and legal and extra-legal strategies that can effectively address both civilian harm and humanitarian need.
I. Introduction
This post explores the phenomenon of armed groups operating in situations that are not ‘armed conflicts’, arguing that the binary legal distinction between ‘armed conflict’ and ‘internal disturbances’ or ‘other situations of violence’ neglects numerous contemporary realities that demand closer attention. In recent decades, a growing number of situations of violence have emerged that do not fit neatly within the established legal categories of international law. They involve organised armed groups that are more structured than those engaged in sporadic criminal activity, yet their actions do not meet the threshold required for the existence of a non-international armed conflict (NIAC) and thus for international humanitarian law (IHL) to be applicable. Such dynamics have become particularly noticeable in parts of Latin America, notably in Haiti, Brazil, Ecuador, Mexico and Colombia, where armed groups use violence to achieve multiple and varied objectives, with some exercising de facto control over territories and populations. But they are far from unique to the region, as the ICRC has determined in 2025 that, of 380 armed groups causing humanitarian concern worldwide, only around 130 were considered parties to a conflict and therefore bound by IHL.
Although these groups and their actions fall short of the legal criteria needed for a NIAC to exist, the humanitarian consequences of their actions – forced displacement, disruption of essential services, and widespread civilian harm – are often indistinguishable from those observed in actual conflicts. Yet because they operate below the legal threshold needed for IHL to apply, populations affected by these groups’ activities find themselves with limited recourse to international legal protections vis-à-vis these actors. In other words, they experience conflict-like harms without benefiting from the legal safeguards that usually apply in conflict. The existence of these violent but still ‘peaceful’ settings raises questions about how international law and operational practice conceptualize and respond to organised violence that falls outside the traditional NIAC paradigm.
II. The Current State of Affairs: The Binary Approach in International Law
International law has traditionally conceived organised violence through a binary lens: when the NIAC threshold is met, IHL applies alongside international human rights law (IHRL) and domestic law; when it is not, IHL does not apply and responses are governed primarily by IHRL and domestic law. This distinction rests on criteria developed by international jurisprudence. In the well-known 1995 Tadic decision, the International Criminal Tribunal for the Former Yugoslavia (ICTY) held that a NIAC occurs ‘whenever there is…protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’. Once the existence of such a conflict is determined, Common Article 3 to the 1949 Geneva Conventions and the relevant rules of customary IHL become immediately binding on all parties. The 1977 Additional Protocol II to the Geneva Conventions (AP II) also applies to NIACs, but only to those occurring between State armed forces and ‘dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement’ the treaty. Article 1(2) of AP II explicitly excludes its application to ‘internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts’.
The existence of a NIAC has direct implications on numerous issues. For instance, it means all parties must comply with IHL rules, such as those regulating the conduct of hostilities and the protection of individuals not taking part in the conflict; it shifts the paradigm for the use of force from a law-enforcement model to the conduct of hostilities framework; it also entails that certain criminal behaviors can amount to war crimes prosecutable under international or domestic law; and that impartial humanitarian bodies, such as the ICRC, may offer their services to all parties, including non-State armed groups.
The dichotomy between NIAC and non-NIAC (but still violent) scenarios, while established for determining when IHL applies, does not appropriately consider a vast range of realities that seem to sit in between, not legally an armed conflict, but hard to describe as ‘peace’. Many armed groups operate outside IHL’s scope yet their actions have significant consequences for populations. In Brazil, for example, the ICRC has noted that the ‘humanitarian consequences for the populations are serious. The armed violence in the cities causes the closing of schools, health service units or other essential service’. In Haiti, 85 per cent of its capital, Port-au-Prince, is controlled by armed groups, and thousands of people are being forced to flee their homes and communities every day. In Ecuador, the representative of the Norwegian Refugee Council (NRC) has shared that ‘internal displacement driven by organised criminal groups remains a fact. These displaced people urgently need support from both the government and the international community to rebuild their lives’. NRC has further stated that the presence of these groups ‘leads to a climate of fear. Daily murders are reported, while extortion targets all kind of businesses, forcing many to close. Children are at risk of recruitment into criminal groups, while women face intimidation and are in risk of sexual violence. Facing direct threats and violence, families have no other option than to abandon their homes’. In Honduras, the ICRC has reported that a significant number of individuals and families have been threatened by armed groups and were forced to abandon their homes (at 605).
Around the world, there are highly organised armed groups that exercise de facto authority over territory and populations and affect the daily life of individuals – while the situations of violence in which they operate often fall short of the intensity criterion needed for this international legal framework to apply. Armed groups active in non-NIAC situations may also have fragmented structures and be less cohesive but still cause displacement, disruption of essential services and harm. This creates challenges: if IHL does not apply, responses default to IHRL and domestic law – normative frameworks that primarily address States’ behaviours – leaving open the question of what international legal obligations, if any, bind these non-State actors. Of course, arguments have been made in favour of applying IHRL to this type of groups. For instance, in February 2012 the Independent International Commission of Inquiry on Syria found that armed groups not (yet) party to a NIAC were bound, as a minimum, by IHRL ‘constituting peremptory international law (ius cogens)’. In 2021, a joint statement by UN human rights experts likewise highlighted that ‘armed non-State actors’ operating during both armed conflict and other situations of violence ‘exercising either government-like functions or de facto control over territory and population must respect and protect the human rights of individuals and groups’. Yet, beyond such statements, whether and how IHRL applies to these non-State actors in situations of violence below the NIAC threshold is still unsettled.
III. Looking Beyond the Law: What to Learn from Other Social Sciences
While international lawyers and institutions focus their attention on conflict classification – determining when violence reaches a threshold to be considered as an armed conflict and framing legal messages accordingly – other disciplines have long examined armed groups without being constrained by such legal distinctions. Political science, sociology, and anthropology, in this regard, place these actors within broader systems of governance, power-relations and social interactions. They explore how groups emerge, transform into political entities or dissolve; how they sustain control and negotiate legitimacy within their own communities and other entities; how they interact with third States, other groups and local and international stakeholders, including humanitarian actors and civil society organisations; and how they build internal cohesion and support and maintain discipline within their ranks. Whether or not these groups are parties to NIACs is usually not taken into account for such inquiries. Instead, what matters is how these groups behave, interact with other stakeholders, govern populations and influence and are influenced by a diversity of factors and actors. This can be observed when assessing the definitions provided by this body of literature, including on the notions of armed groups, sometimes also referred to as ‘rebel groups’, ‘insurgent organisations’ or ‘guerrillas’ (see here, here, here, here and here).
An examination of these studies highlights the valuable insights they offer, notably to understand how armed groups behave in situations that do not necessarily reach the threshold needed for IHL to be applicable. For instance, by moving away from legal assessments, these studies provide useful information into the incentives that drive restraint or violence with respect to local communities, the reasons why they may engage with international institutions, the mechanisms through which authority is exercised and identity is formed, and the internal relationships that sustain or undermine group discipline and command and control. Understanding these dynamics can help a variety of stakeholders to address a central question: how can individuals be (better) protected from violence? In providing useful information to address this query, scholarship from social and political sciences can help to analyse the hundreds of groups that, on current estimates, fall outside IHL’s scope (as per the numbers provided above by the ICRC). Rather than treating these actors as legal anomalies, knowledge from these disciplines places them as political and social entities operating within complex legal ecosystems, and that can be mapped, engaged, and influenced.
IV. Beyond Conflict Classification: Towards a More Inclusive Understanding of Harms and Needs
While legal scholars and institutions are constrained by existing legal frameworks and the binary scenario described above, some organisations have taken a pragmatic approach and respond to the challenging task of delivering assistance in these violent but still ‘peaceful’ settings. The ICRC, for instance, has developed a practice of working in ‘other situations of violence’, characterised by a certain level of violence that does not reach the IHL threshold. While initially focused on wounded soldiers, this organisation has over time ‘extended its activities to cover all victims of these events’ (at 3). In ‘other situations of violence’, the ICRC
offers its services if the seriousness of unmet needs and the urgency of the situation warrant such a step. It also considers whether it can do more than other owing to its status as a specially neutral and independent organization and to its experience. In these situations, its offer of services is based not on international humanitarian law but on the Statutes of the Movement (at 11).
The ICRC’s activities in such scenarios are indeed grounded on the Statutes of the Red Cross and Red Crescent Movement (arts 5.2(d) and 5.3). As the ICRC Director for the Americas has emphasised, the organisation ‘cannot turn its back on the acute and long-term suffering of people affected by’ situations that do not reach the armed conflict threshold. Since its creation, she notes, ‘the ICRC has carried out humanitarian operations whenever and wherever its action could provide a meaningful response … regardless of whether the situation of collective violence was considered an armed conflict or not’ (at 603). When describing the various activities it can undertake, the ICRC engages ‘in dialogue with all those involved in an armed conflict or other situation of violence who may have some influence on its course, whether they are recognized by the community of States or not’ (at 22).
The ICRC is not the only organisation conducting humanitarian activities in contexts where no formal conflict classification exists. This demonstrates that such efforts do not (and cannot) exclusively depend on legal thresholds. Instead, they are guided by the harms and needs that violence causes on individuals and populations, and by the possibilities for alleviating them. Ultimately, the phenomenon of armed groups without armed conflict reveals the limits of a strictly binary lens, especially from the perspective of those most affected by such actors.