About the author(s):
Katharine Fortin is an Associate Professor at Utrecht University where she teaches IHL and IHRL. Before joining Utrecht University, she worked at the ICTY, ICC and Norton Rose Fulbright. She is the author of The Accountability of Armed Groups under Human Rights Law (Oxford University Press, 2017) which won the 2018 Lieber Prize. She has written widely about the framework of law that applies to armed groups in non-international armed conflicts and is one of the editors of the Armed Groups and International Law blog.
Nathan Derejko’s new book ‘Identifying Non-International Armed Conflict: International Law and Practice’ (CUP, 2026) brings a strong new voice to legal debates relating to the NIAC framework, notably the nature of the Parties, the threshold required for IHL to apply to a specific situation and related discussions on the ‘aggregation’ of armed violence and the geographical and temporal scope of IHL. The clarity of Derejko’s writing makes the book a pleasure to read and there’s little doubt that the volume makes a valuable addition the field.
In this post, I engage with chapter 4 of the book, entitled ‘The Personal Scope of Non-International Armed Conflict’. I first provide some thoughts on the manner in which the chapter is structured into sections entitled the ‘rationae personae active’ (i.e. individuals with obligations) and ‘rationae personae passive’ (i.e. individuals with protections). I then provide some reflections on the chapter’s arguments regarding whether IHL applies to intra party violence. I end with some related comments on how the chapter – and book as a whole – addresses the issue of the relationship between IHL and IHRL, and the applicability of the latter in NIACs.
The ratione personae of IHL: a binary approach
Chapter 4 is structured around an assertion that the general architecture of NIAC supports what Derejko calls “a binary ratione personae framework” (p.204). This is delineated along the lines of (i) the armed forces of a Party to a NIAC, which are presumed to be directly participating in hostilities and (ii) individuals who do not, or who no longer, directly participate in hostilities, such as civilians and individuals hors de combat. According to Derejko, this structure “maps neatly onto the notion of active and passive ratione personae, the former possessing obligations under the law of NIAC, and the latter entitled to its protections” (p.204).
The chapter then proceeds to analyse these two categories one by one, by first examining ‘active ratione personae: bearers of obligations’ and secondly analysing ‘passive rationale personae: beneficiaries of protection’. While agreeing with a lot of the substantive analysis this chapter, I found myself wondering whether Derejko’s claim that IHL supports an approach that neatly divides individuals up into these two categories is legally accurate or analytically helpful. My thoughts on this topic are influenced by prior work on civilian agency, which studied the conceptualisation of the civilian under IHL. They are also influenced by current work in the Beyond Compliance Consortium, where we inter alia encourage a rethinking of narrow conceptions of harm, both in terms of who perpetrates it, who experiences it (civilian/non civilian), what its drivers are and how it is experienced.
A binary approach: Legally accurate?
I wonder first whether the framing is legally accurate, given the number of exceptions to this binary that Derejko himself admits exist. For example, Derejko identifies that members of States’ armed forces have obligations under IHL but are also beneficiaries of protections under IHL pointing to the protection against superfluous injury and unnecessary suffering (p. 204). Equally, he mentions that certain ‘beneficiaries of protection’ are also ‘bearers of obligations’. He exemplifies this by listing the IHL obligations that different types of protected individuals bear. For example, he notes that there are many individuals obliged to uphold IHL rules who are not necessarily part of the armed forces of a Party to a NIAC. He gives the example of individuals responsible for the internment or detention, individuals responsible for humane treatment or judges and other judicial authorities responsible for upholding judicial guarantees. He also mentions that doctors, nurses, emergency paramedics and other medical workers are bound by IHL rules regarding the medical treatment of the wounded, sick and shipwrecked and protected. He also identifies civilian or military medical personnel as examples of individuals subject to both protection and obligation and points out that individuals DPH-ing must be ‘bound by and subject to IHL for the duration of their participation’ (p210-212).
Fighters hors de combat could have also been mentioned as individuals who have both duty-bearers and beneficiaries of protection at the same time. It may be because Derejko channels his analysis through the binary framework that he does not pay any attention to hors de combat fighters in the part of the chapter dedicated to ‘passive rationale personae: beneficiaries of protection’ (p.221). Instead, he chooses to only focus on civilians, which may also be the reason that he comes to the somewhat surprising conclusion that “the principal beneficiaries of protections during NIAC are civilians” (p.227). While this may be true if the units being counted are the individuals protected at any given moment, it seems manifestly untrue if the unit being counted is the category of individuals protected. For surely we should not be ranking one protected category of individuals above another.
A binary approach: helpful?
This takes me to my reflection on whether the passive/active or protections/ obligations binary is helpful. One concern is that such a binary framework simplifies the ‘idea’ of protection under IHL in a manner that is not in the interest of its beneficiaries. Indeed, there may be some protection risks associated with a conclusion that civilians are ‘the principal beneficiaries of protections during NIAC’. This is not simply because it is legally inaccurate (see above) – but also because it risks equating the idea of IHL protection with non-fighters. In doing so, it may unwittingly contribute to State discourses where the more politically sensitive categories of protected persons – i.e. enemy forces hors de combat – are excluded from IHL’s protections.
Relatedly, there is a concern that casting civilians as ‘passive recipients of protections’ may contribute to an essentialisation of the ‘civilian’ category, in a manner which does not match the lived reality of everyday life for civilians in war. Indeed, research in the political and social sciences is increasingly showing that civilians in NIACs exercise agency on multiple levels to secure their survival, exercise leadership within their communities, negotiate with armed actors and provide humanitarian assistance (see here, here, here, here and here). A framework of analysis that implies that civilians are non-agentic risks contributing to an image of ‘civilian-ness’ that is impossible for civilians to live up to (for the notion of civilianness see, here and here) . A concrete further danger is that this essentialisation provides fuel to State narratives regarding membership of armed groups for the purposes of IHL (or counter terrorism for that matter) that treat civilians’ ordinary agentic lived experiences during the course of everyday civilian life under rebel governance as signs of membership in an armed group (see here and here).
A further concern is that such a binary framework may lend support to a view that the architecture of IHL is designed primarily to provide protection to civilians from hostilities. Within this architecture, the main architects of harm – and therefore the main obligation bearers – are the fighters or those directly participating in hostilities, and the main recipients of harm – and the principal beneficiaries of protections in NIACs are, as Derejko says, civilians. Yet, as shown above, this neat binary does not do justice to the legal and factual complexity of most NIAC landscapes. It also does not do justice to the ability of the IHL framework to address that complexity by (i) providing protection against harms committed by other actors i.e. not fighters, and (ii) conceptualising ‘harm’ and ‘protection’ much more broadly than violence in the course of hostilities (see second season of the Beyond Compliance: In Conversation podcast here). Of course, the IHL framework is limited and needs to be read alongside IHRL, but it is not as limited as this binary framework of analysis might suggest. I don’t want to overstate these risks, but I think it’s important that we think about them because (i) in the words of Kinsella, IHL ‘generates the very subjects that its protects’ (p190) and (ii) legal scholarship undoubtedly plays a role in the construction of international subjects (see here).
Intra Party violence falling into the scope of IHL
The second point that I would like to address is the analysis of IHL and intra party violence. Here, Derejko embarks on an interesting account framed around IHL’s Other (not the Megret’s post colonial lens) to explain the traditional idea that IHL is wired to provide protections from one side – to another. He then employs a range of legal doctrinal and normative arguments to argue that actually ‘nothing in the conventional or customary NIAC regime precludes the applicability of IHL to non-opposing forces’ (p243). In coming to this conclusion Derejko seems particularly persuaded by the fact that if ‘IHL were deemed inapplicable to non-opposing forces, members of armed groups subject to criminal procedure at the hands of their own Party would not receive the IHL protections that regulate judicial proceedings during NIAC’ (p234). Even stronger, he asserts that ‘finding otherwise is tantamount to suggesting that torture, mutilation and summary execution are prohibited by IHL only when carried out against the enemy, leaving collaborators, informers and deserters subject to inhuman treatment with IHL’s tacit consent’ and he finds this a ‘manifestly absurd interpretation of CA3’s protective scope’ (p234).
In making this argument, Derejko’s analysis seems to be built on the presumption that if IHL did not apply – nothing else would. Yet, the question being asked in scholarship on this question is not whether such individuals should be protected or whether acts such as unfair trial, torture or summary executions are lawful, but which body of law should regulate these acts ((see here, here and here, para 1453). For example, in his excellent history of the treatment of collaborators, informers and deserters, Darcy has shown how that these specific categories of individuals were not historically seen as falling within the conceptual scope of IHL’s protections (chapter 4). He shows that rather than being an ‘absurdity’, the gap in IHL coverage was simply a feature of the established traditional conceptual parameters of IHL vis-à-vis IHRL and domestic law. I would have liked to have heard Derejko’s views on this aspect.
Armed groups and IHRL
Derejko’s decision not to analyse this point – or the nexus test raised by the Appeals Chamber (AC) of the Ntaganda case (para 68) – may stem from the fact that his book’s treatment of IHRL is generally quite light, especially when it comes to armed groups. At one point (p140), Derejko affirms that ‘armed groups do not, per se, have access to the law enforcement regime’, leading me to believe that he takes the view that armed groups are not bound by IHRL – but there’s no further identification of or unpacking of the scholarly debate on this topic.
The question of armed groups being bound by IHRL remains a contested topic, but it is unexpected that a book seeking to present not only ‘international law’ but also ‘practice’ (the title is Identifying Non-International Armed conflict: International Law & Practice) does not engage with this debate at all. Indeed, the very first voices to argue that armed groups have obligations under human rights law were UN Special Rapporteurs who were seeing through their work that IHL on its own could not fully address the situation on the ground in armed group territory (see here, introduction). For the very same reasons in 2021, forty three independent United Nations human rights experts issued a statement highlighting the far-reaching negative human rights impacts of armed non-State actors on rights’ holders and human rights defenders. Pointing to the extensive practice from the UN Security Council, General Assembly and Human Rights Council, the experts asserted “that, at a minimum, armed non-State actors exercising either government-like functions or de facto control over territory and population must respect and protect the human rights of individuals and groups”.
Given that it now seems widely accepted that armed groups have human rights obligations – or at least, in the words of the ICRC, human rights ‘responsibilities’ (para 591), it is a pity that this topic is not further explored in Derejko’s book (for a different approach in another recent book on NIACs by Heffes and Weizman, see here). Indeed, given that most institutions including the ICJ now consider IHL & IHRL as complimentary frameworks in armed conflict and in the words of Kooijmans almost four decades ago -NIACs are the ‘true shadowland’ between IHL and IHRL, I would have liked to have seen the interrelatedness of these two legal frameworks in NIACs more energetically explored.