Analysis: Armed groups should not be a law unto themselves*
JOHANNESBURG, 17 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
<
http://www.icrc.org/eng/resources/international-review/review-882-armed-gro
ups/review-882-all.pdf> June 2011 International Review of the Red Cross
publication.
The most infamous armed groups - such as Joseph Kony’s
<
http://www.irinnews.org/In-depth/94259/92/On-the-trail-of-the-LRA> Lord’s
Resistance Army (LRA), the
<
http://www.irinnews.org/Report/93634/Analysis-Sapping-the-strength-of-DRC-m
ilitias> 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
<
http://www.icrc.org/eng/resources/documents/article/review-2011/irrc-882-ba
ngerter.htm> 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, 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
<
http://www.odi.org.uk/work/programmes/humanitarian-policy-group/>
Humanitarian Policy Group of the Overseas Development Institute, told IRIN.
The Geneva-based NGO <
http://www.genevacall.org> 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
<
http://www.irinnews.org/Report/87608/CONFLICT-Campaigners-target-landmine-u
se-by-non-state-actors> 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
<
http://www.cdp-hrc.uottawa.ca/uploads/TakingArmedGroupsSeriously.pdf>
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
<
http://hpcrresearch.org/events/live-seminar-43-understanding-armed-groups-a
nd-applicable-law> April 2012 internet seminar, hosted by
<
http://hpcrresearch.org/> Harvard University’s Program on Humanitarian
Policy and Conflict Research and the
<
http://www.icrc.org/eng/resources/international-review/index.jsp>
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.
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.”
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Received on Fri Aug 17 2012 - 14:39:35 EDT
