Analysis: Armed groups should not be a law unto themselves*
JOHANNESBURG, 15 August 2012 (IRIN) - The vast majority of the world's conflicts involve not just government troops but also armed groups, which act without state sanction or control - and while some of these groups seek to conform to international humanitarian and human rights law, others wear their complete disrespect for the laws of war as a badge of honour.
“It is the population at large who is placed centre-stage in this type of [non-international] conflict, by both rebel and regular forces. Civilians are both the prize and the main victims of these wars,” the International Committee of the Red Cross (ICRC) said in its June 2011 International Review of the Red Cross
The most infamous armed groups - such as Joseph Kony’s Lord’s Resistance Army
(LRA), the Democratic Forces for the Liberation of Rwanda
(FDLR), and a range of Salafist-inspired insurgency groups - employ terror to control affected populations. There are also armed groups that see adhering to humanitarian standards as a crucial component of the fight - although in both cases their understanding of the Geneva Convention and its associated protocols, which run to more than 500 articles, maybe lacking.
Olivier Bangerter, a former International Committee of the Red Cross (ICRC) advisor for dialogue with armed groups, said in a 2011 paper Reasons Why Armed Groups Choose to Respect International Humanitarian Law or Not
, “It is questionable how far knowledge of the content of IHL [International Humanitarian Law] by many commanders and fighters really extends beyond some basic notions…few [armed] groups have access to lawyers who are well versed in IHL; in most cases, their knowledge derives from hearsay and reading matter of varying quality.”
Engaging armed groups
For NGOs, engaging and educating armed groups about their humanitarian obligations is fraught with challenges. It may be seen as “conferring legitimacy” on them - with affected governments citing violations of sovereignty - or as falling afoul of international anti-terror legislation.
Armed groups also vary widely. Martin Lacourt, the head of ICRC’s Unit for Relations with Arms Carriers, told IRIN, “There is almost nothing in common between the Hezbollah - with a strong chain of command and able to conduct land, air and naval operations - and the Sabaot Land Defence Front around Mount Elgon in Kenya. Armed groups represent a wide variety of actors, from quasi-state organizations to a mere handful of predators. Standardized approaches are doomed to fail, standard material impossible to devise. The ICRC therefore aims at tailor-made approaches.”
The ICRC has held workshops for commanders of armed groups in the Philippines and Sudan to provide “input in terms of IHL content… [but] only the armed group's leadership can enforce IHL standards,” he said. The humanitarian organization has also disseminated IHL advice to armed groups in Central African Republic, Colombia, the Democratic Republic of Congo and the Gaza Strip.
|While few armed groups have effective education and training systems, they all have some kind of doctrine, code of behaviour and sanctions to penalize misconduct
“While few armed groups have effective education and training systems, they all have some kind of doctrine, code of behaviour and sanctions to penalize misconduct, including theft, looting, cruelty, assault, rape and ill treatment of prisoners,” Lacourt said. Though the ICRC can advise armed groups on IHL rules in their policy documents, it does not endorse their codes of conduct.
“If integrated properly, IHL rules can be stated in a way that is easy to understand and to be followed by members of the armed group. Complex legal texts are unlikely to capture the attention of fighters,” the ICRC’s June 2011 publication said. And even discussions about the issue “may cause [armed] groups to reflect on IHL and on their behaviour in comparison to it”.
Common Article 3 of the 1949 Geneva Convention, according to the ICRC, binds non-state actors - including corporations and armed groups - to about 140 of the 160 or so customary IHL rules that apply to states.
But “while armed groups are bound by IHL and other customary or treaty-based international law, they are excluded from the processes making these laws, negotiating or signing treaties and so on. This may reduce their incentive to comply,” Ashley Jackson, a research fellow on armed groups at the Humanitarian Policy Group
of the Overseas Development Institute, told IRIN.
The Geneva-based NGO Geneva Call
has developed three Deeds of Commitment (DoC) for armed groups, including a prohibition against sexual violence and a call to protect children from the effects of armed conflict.
Geneva Call’s first DoC in 2000 set out to get armed groups to abide
by the Mine Ban Treaty, a state-agreed international convention to outlaw the use and stockpiling of anti-personnel mines. These efforts were originally dismissed by some within the mine-ban community, and many governments were adamant that armed groups might sign such a pledge but would never respect it. Yet 42 armed groups have signed Geneva Call’s DoC banning anti-personnel mines and are abiding by it, allowing for both internal and external monitoring and verification of their compliance.
Geneva Call is distilling 15 basic humanitarian rules for armed groups into a training manual, including respect for humanitarian actors and the humane treatment of opposition forces. The organization’s legal advisor Jonathan Somer does not envisage a DoC similar to that used for anti-personnel land mines but added that “nothing is on or off the table right now”.
None beyond the pale
“Many of the rules of IHL are very difficult to monitor as they involve judgment and deference, such as proportionality vis-à-vis civilian casualties, precautionary measures in attack and the notion of imperative military necessity. Even with respect to the mechanisms available to monitor states, it is very difficult to determine when violations have taken place,” Somer told IRIN.
“Therefore a deed of commitment addressing IHL compliance in general would bring forth many greater challenges. We are taking it step by step. But it is still important to promote ownership of IHL in general…and [for armed groups] to take responsibility for internal implementation,” Somer said.
Those proposing greater engagement with armed groups on human rights and humanitarian laws see all as fair game.
Professor Marco Sassòli, director of Geneva University’s International Law Department and chair of Geneva Call’s board, said in his 2010 paper Taking Armed Groups Seriously: Ways to Improve their Compliance with International Humanitarian Law
that to reject an armed group as beyond the pale “would mean that those in need of the greatest protection would be deprived of any protection efforts just because they are in the hands of a group whose aims or methods are utterly rejected”.
“At any rate, the more ANSAs [armed non-state actors] comply with international standards, the harder it will be for outliers to justify their noncompliance,” Somer said.
ODI’s Jackson said “Even within more extreme groups, there may be those members or local commanders that recognize the rationale behind having laws in war. And it’s also important to remember that these groups evolve over time - for example, the Layha, or the Afghan Taliban’s code of conduct, has been revised in recent years with some more harmful provisions, such as commands to burn schools or banning engagement with NGOs, dropped.”
Zama Coursen-Neff, deputy director of the children’s rights division of Human Rights Watch (HRW), said in a April 2012 internet seminar
, hosted by Harvard University’s Program on Humanitarian Policy and Conflict Research
and the International Review of the Red Cross
, “Some armed groups care very much about being perceived as following the law, [although] they may not care about the law itself, but care about the perception.”
Such groups include the Libyan rebels that overthrew Muammar Gaddafi’s government and Maoist rebels in India who rationalized attacks on schools by saying they were occupied by government forces. After HRW research revealed the schools had no military presence, and local media and NGOs questioned the actions, the school attacks “diminished,” Coursen-Neff said.
Are armed groups open to IHL practices?
Elements of humanitarian law are often already present in conflict societies. In Somalia there is the traditional warfare creed of ‘Biri ma Geido’ or Spared from the Spear, that requires some categories of people be protected during conflict, including women, children, the elderly, poets and peace negotiators, among others. Not all armed groups adhere to this creed, however.
Religious beliefs and a society’s moral values can also place limits on behaviour during conflict, but may also run counter to IHL.
“Pillaging and the kidnapping and enslavement of civilians observed during the civil war in southern Sudan were carried out by horsemen who came largely but not solely from Arab tribes whose traditional law of war considers such practices to be normal,” Bangerter said in his 2011 paper.
|Marxist movements claiming to fight for the good of ‘the people’ frequently have a code of conduct that prohibits a number of acts
But armed groups may respect humanitarian laws for a number of reasons, from their own convictions or public relations to the military advantages it may entail, he said. “Marxist movements claiming to fight for the good of ‘the people’ frequently have a code of conduct that prohibits a number of acts, such as pillaging in any form, the ill-treatment of civilians and prisoners, and violence against women.”
On the other hand, military advantage is also seen as a reason not to respect humanitarian law. Child soldiers may be used to bolster forces and civilian shields or terror tactics may be used to compensate for an armed group’s relative military weakness.
Bangerter suggests looking to the Swiss Criminal Code’s carrot-and-stick approach to promoting compliance with IHL. “While criminalizing the financing of terrorism by imposing a fine and/or a prison sentence of up to five years, it [the criminal code] states that raising such funds cannot be punished ‘if the financing is intended to support acts that do not violate the rules of international law on the conduct of armed conflicts’. This gives an armed group wanting to raise funds in such a prosperous country a serious reason to consider respecting IHL better.”
*This article was amended on 15 August