Dissemination of the laws of war to opposition groups in Tajikistan Dissemination of the laws of war to opposition groups in Tajikistan Photo credit: CICR/PACCAUD, Claude
Rebels with a cause? The role of armed non-state actors in the protection of civilians
by Stuart Casey-Maslen August 2013

Many organisations operating in or near conflict zones have chosen – for valid reasons – to focus on securing operational access to populations in need, but at the implicit or explicit cost of not addressing protection issues. In October 2011, with the support of the Human Security Division of the Swiss Federal Department of Foreign Affairs, the Geneva Academy published the results of a two-year study into ways to enhance compliance by armed non-state actors with international norms, especially those protecting civilians.+Rules of Engagement: Protecting Civilians through Dialogue with Armed Non-State Actors, Geneva Academy of International Humanitarian Law and Human Rights, Geneva, October 2011, available at http://www.geneva-academy.ch/docs/publications/Policy%20studies/Rules-of-Engagement-EN.pdf. The study found that greater engagement is needed with armed non-state actors on the targets of their attacks; on the means and methods of warfare they choose to employ; and on the way they treat civilians and captured or wounded prisoners.

The challenges are enormous. As Hugo Slim observed in his thoughtful book Killing Civilians, even the word ‘civilian’ is contentious. International humanitarian law makes a critical distinction between civilians who participate ‘directly’ in hostilities (and who may be attacked in a situation of armed conflict) and those who do not (and who must accordingly be respected and protected). Yet international humanitarian lawyers are far from agreement on precisely what acts constitute direct participation in hostilities.

Accordingly, given the controversies and intricacies of the law, we can hardly be surprised that armed non-state actors have a variety of interpretations as to who is a legitimate target. Those calling for global jihad are especially broad in their definition of targets of military operations. In a May 2012 statement, for example, al-Qaeda in the Arabian Peninsula (AQAP) invited Muslims in Yemen to ‘target Americans everywhere’.+WorldAnalysis.net, AQAP: Statement on the Targeting of US Officers in Hodeidah, 24 May 2012, available at http://worldanalysis.net/modules/news/article.php?storyid=2157. In an open letter written in reply to the UN Assistance Mission in Afghanistan (UNAMA)’s 2012 annual report on the protection of civilians,+UNAMA, Afghanistan – Annual Report 2012: Protection of Civilians in Armed Conflict, February 2013. the Taliban provided a detailed definition of who they consider to be civilians:

According to us civilians are those who are in no way involved in fighting. The white-bearded people, women, children and common people who live an ordinary life, it is illegitimate to bring them under attack or kill them. But it has been disclosed to us that the police – those personnel of the security companies who escort the foreigners’ supply convoys and are practically armed, similarly those key figures of the Kabul admin who support the invasion – They are directly involved in the protraction of our country’s invasion and legally we do not find any difficulty in their elimination, rather we consider it our obligation.+Islamic Emirate of Afghanistan, An Open Letter to the UNAMA about the Biased Behaviour of this Organization, 22 February 2013, available at http://blogs.mediapart.fr/blog/lynx/010313/open-letter-unama-about-biased-behavior-organization.

It is not always the case that armed groups broaden the range of targets beyond what the law allows. In the 1996 Israel–Lebanon Ceasefire Understanding, which senior Hezbollah officials have said they support,+Amnesty International, Israel/Lebanon – Under Fire: Hizbullah’s Attacks on Northern Israel, September 2006, p. 5. it is stated that ‘the two parties commit to ensuring that under no circumstances will civilians be the target of attack and that civilian populated areas and industrial and electrical installations will not be used as launching grounds for attacks’.+Israel–Lebanon Ceasefire Understanding, 26 April 1996, available at http://www.usip.org/files/file/resources/collections/peace_agreements/il_ceasefire_1996.pdf. Good and bad practice abounds.

‘Rules of engagement’

Too few organisations actively engage in explicit protection work with armed groups in conflict zones. We believe that this needs to change, and change urgently. But it is not enough merely to engage; such engagement needs to be planned, sustained and regularly assessed. Accordingly, we have proposed ten ‘rules of engagement’ to guide those who seek to promote humanitarian norms with such actors.

First, understanding why a given actor does not comply with certain international norms is key to efforts to improve compliance. There is, of course, no guarantee that such efforts will be successful even with a good understanding of a group’s motivations as well as the corresponding reasons for its violation of international norms. It is, though, almost certain that without such detailed knowledge, efforts to promote norms will fail. Although challenges to better compliance are diverse, it is possible to summarise them according to five main factors: strategic military concerns, likelihood of prosecution (nationally and/or internationally), lack of knowledge, political or religious ideology, or lack of ‘ownership’ of norms that they have not contributed to making.

Second, engagement needs to embrace the broadest possible range of armed groups. The only caveats to this principle are that, when deciding whether or not to engage with a given armed group, the potential consequences of that engagement for the civilian population should be the primary concern. Furthermore, certain donors or governments may seek to prevent any form of engagement, even for purely humanitarian purposes, with groups that they term ‘terrorist’. Efforts to promote humanitarian norms may fall foul of national legislation that criminalises material support (broadly defined) to any entity designated as terrorist.+See, for example, the US Supreme Court decision in Holder v. Humanitarian Law Project, 130 S.Ct. 2705, June 2010. Humanitarian organisations will therefore have to consider whether their actions may endanger their staff or put them at risk of prosecution under counterterrorism legislation.

Third, to maximise the likelihood of success, engagement should be initiated as early as possible, conducted at a high level by all concerned parties, and sustained throughout the duration of armed violence. It may be possible – and it is certainly desirable – to build on pre-existing relationships with particular groups. Former members of other armed groups or indeed the group itself may be able to play a helpful role in engagement. They may also be able to demonstrate with greater credibility how the group can attain their objectives without violating applicable norms.

Fourth, those engaging with armed non-state actors should stress from the outset that their engagement does not affect the status of the armed group under international law. They should, however, be aware that, even though their engagement cannot change the legal status of a group, it will be seen by some (especially the concerned government) as contributing to a perception of legitimacy. Governments such as India and Turkey have been vociferous in their opposition to external engagement, while the Philippines and a select few others have been more open to NGOs and academic bodies assisting in mediation or protection efforts.

Fifth, the situation in any given conflict should be monitored for particular ‘windows of opportunity’ that may offer a greater chance of successful engagement on specific humanitarian concerns with any given armed group. A discussion of norms may be easier during a lull in fighting or a ceasefire, for example, than when conflict is intense. Leadership or military strategy may change, helping to facilitate discussion of compliance with norms. Fragmentation or splintering of groups, sometimes as a result of military strategy or tactics, is a challenge, though it can also provide an opportunity to engage. In Nigeria, for example, the Islamist group Boko Haram has carried out more than 700 attacks that have killed more than 3,000 people. In January 2012, Jama’at Ansar al-Muslimin fi Bilad al-Sudan (commonly known as Ansaru) announced that it had split from Boko Haram, claiming that it was ‘inhuman’ for killing ‘innocent’ Muslims.+See, for example, Jacob Zenn, ‘Cooperation or Competition: Boko Haram and Ansaru After the Mali Intervention’, Combating Terrorism Center (CTC) Sentinel, Vol. 6, Issue 3, March 2013, http://www.ctc.usma.edu/posts/march-2013.

There are potentially advantages and disadvantages to links with peace negotiations. For example, where a peace process is faltering it may be appropriate to keep engagement wholly outside it, the reason being that if norms are included in a peace agreement and the negotiations fail or the peace agreement unravels, commitments to comply with certain norms may also fail. At the same time, a parallel process can be seen as giving impetus to a future or moribund peace process. It may thus constitute confidence-building measures while other, potentially more sensitive issues are still to be resolved.

Sixth, since armed groups have what are termed ‘incentives’ for complying with or violating international norms, those engaging with armed groups should seek to understand and build on positive incentives. Incentives often cited by groups themselves include the need for popular support (‘winning hearts and minds’); the self-image of the group; the group’s own internal beliefs; reciprocity; projecting a good national or international image; and ties with the population. These should be identified and built on in a systematic fashion. Negative incentives most often quoted by armed groups centre on what are perceived as violations by state actors and a system of international justice that unfairly targets non-state actors. Other negative incentives include lack of knowledge or understanding of particular norms; a situation when an armed group is fighting for its very survival with limited options; being termed terrorists; the perceived complexity of international law; and the need to recruit large numbers of fighters (whatever their age) to withstand superior state armed forces.

Seventh, as part of the process of engagement, armed groups may need to be informed about their international legal obligations. In retrospect, armed groups that we have spoken to believe that a better knowledge of international law could have reduced the impact of armed conflict on civilians. In some cases, for example, such groups have not been aware of the prohibition on child recruitment and the potential liability before the International Criminal Court (ICC) and other tribunals. Dissemination efforts can take place at a senior level or be conducted with those engaged in promoting compliance. Thankfully, despite considerable opposition, there is increasing understanding that armed groups are bound not only by customary international humanitarian law, but also by customary human rights law.

Eighth, agreements and undertakings by armed groups should be reflected in writing wherever possible, even if, initially, they are made only orally. A variety of mechanisms exist for non-state actors to commit to respecting international norms, such as unilateral declarations, special agreements, Memoranda of Understanding, ‘Ground Rules’, Action Plans or Deeds of Commitment. These offer a valuable opportunity for such actors to express their adherence to international norms. Great care should be taken to ensure that agreements do not endorse behaviour in violation of the international obligations of an armed group, or that they simply pay lip service to compliance (or, worse, use it as a propaganda tool). But the work of Human Rights Watch with respect to the use of landmines in Libya in 2011, for example, has shown that groups can be called to account when they breach their commitments.+See, for example, Stuart Hughes, ‘Libya Conflict: Rebels Accused of Reneging on Mines Vow’, BBC News, 19 April 2011, http://www.bbc.co.uk/news/world-africa-13138102.

Ninth, for an armed group to improve its compliance with humanitarian norms, it must disseminate, monitor and enforce these norms within its ranks. Armed groups should therefore be encouraged to develop and adopt a code of conduct that reflects the local context while respecting international standards. Some, such as the Taliban in Afghanistan, have quite elaborate codes of conduct, but their fighters do not always respect them in practice. The work of the United Nations Assistance Mission in Afghanistan (UNAMA) has demonstrated that armed groups can be held to account when confronted with violations of their own rules.

Those promoting compliance with norms should be aware that sanctions against a member of an armed group may be summary in nature and in the past have involved corporal punishment or execution. (The Geneva Academy would not consider corporal punishment or execution appropriate under any circumstances.) Measures of reparation (either on an individual or group basis) or local forms of justice that respect international norms and standards will be more appropriate. Other sanctions may include detention (where this is feasible), removal from the ranks of the group, demotion or removal of the fighter’s weapon or other privileges for a specified period.

Tenth, monitoring is a critical element in promoting compliance with norms. It should be external, where possible, but there should also be an opportunity for an armed group to complain about the behaviour of the government’s armed forces against which it is fighting. It is important that those engaging with armed groups are seen to be impartial with respect to allegations against any party to the conflict. Where humanitarian norms have been violated by members of armed groups, and especially where civilians have been targeted, such abuses should be publicly acknowledged.

Certain norms, such as the destruction of anti-personnel mines, may require the commitment of time and resources by the armed group. Technical assistance may be needed to enable the group to fulfil its undertakings, for example with respect to the destruction of certain weapons and ammunition. Care will have to be taken, however, to ensure that those promoting better compliance with norms do not become complicit in any future criminal behaviour by an armed group or become engaged in developing military strategy. For example, following the neutralisation of antipersonnel mines, materials should not be recycled into further arms or ammunition.

In taking these issues forward, the Geneva Academy is conducting a follow-up project to Rules of Engagement, again with the support of the Human Security Division of the Swiss Federal Department of Foreign Affairs, to look in more detail at how armed groups perceive international norms, especially those protecting civilians. Greater understanding of the internal dynamics within armed groups around targeting and means and methods will ultimately, we hope, see fewer civilian deaths and injuries. Armed non-state actors must, wherever possible, ensure that those who do not participate directly in hostilities are not targeted during their operations, and that incidental civilian harm is reduced to an absolute minimum. The challenges are immense, but the need is even greater.

Dr Stuart Casey-Maslen is Head of Research at the Geneva Academy of International Humanitarian Law and Human Rights.