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Monitoring IHL Compliance during Non-International Armed Conflicts: The Need for a Complementary Approach – Part II

March 18, 2020

The Monitoring System of the Office of the Special Representative of the SG for Children and Armed Conflict

Apart from the Convention on the Rights of the Child (CRC) and the Optional Protocol to the CRC, the thematic area of children in armed conflict is monitored by the Office of the Special Representative of the Secretary-General for Children and Armed Conflict (OSRSG/CAAC), through its Monitoring and Reporting Mechanism (MRM). The MRM serves as the basis for the collection of information on the situation of children affected by armed conflict and has the capacity to supervise compliance with IHL and human rights norms related to the protection of children by states and armed groups. This is a major advantage considering the state-centric nature of the existing treaty-based compliance mechanisms. Nevertheless, this advantage is compromised because for the MRM to engage in dialogue and develop an action plan with a non-state actor the consent (pg. 683) of the relevant state party is required. This is an element that can diminish the potential of this mechanism, as states are apprehensive of facilitating any type of engagement with non-state actors, fearing that they will gain legitimacy. As Marcos Kotlik discussed recently here on this blog, states’ reticence to the MRM’s engagement with non-states actors is evident throughout the practice of this mechanism.

Regarding the activation of the MRM, which is country specific (pg. 9) and comprises the most important actors in the area of child protection at the national and international level, it gets triggered once a party (state or armed group) is listed in the annexes of the UN Secretary-General’s reports for committing grave violations against children. There are six grave violations but only five of them trigger the activation of the MRM, namely the recruitment or use of children below the age of 18 as soldiers, the killing and maiming of children, sexual violence against children, attacks against schools or hospitals and the abduction of children (UNSC Res. 1379, para.16; UNSC Res.1882, para. 3; UNSC Res. 1998, para. 3; UNSC Res. 2225, para. 3). Once a party is listed in the UN Secretary-General’s reports for committing one or more of the five grave violations against children, delisting is only possible following the signature and effective implementation of an action plan between the UN and the party concerned. The monitoring system by the OSRSG/CAAC is further supplemented by the UN Security Council Working Group on Children and Armed Conflict (SCWG). In accordance with the UN Security Council Resolution 1612, the SCWG reviews the reports of the MRM and supervises the progress in the implementation of the action plans signed between the UN and the parties listed in the Secretary-General’s reports.

The monitoring system by the OSRSG/CAAC comprises response-oriented mechanisms, that are set-up to target and respond to violations of international norms committed against children. For example, the MRM is activated once violations against children have already taken place. It therefore aims to gather additional information on the violations committed, engage in dialogue and develop an action plan with the party/parties listed for committing grave violations against children. The SCWG then considers the reports prepared by the MRM and suggests possible courses of action to advance the protection of children during armed conflicts. Coercive measures in the form of sanctions are among the measures that the SCWG can recommend in situations of concern. While the adoption of sanctions was met with hesitation, as they have been applied only after a sanctions regime was in place for a situation already on the UN Security Council’s agenda, as in the case of the DRC (para. 9), the possibility to adopt coercive measures further confirms the characterization of the monitoring system as response-oriented. The nature of the monitoring process is justified by the mandates of the MRM and the SCWG, which consist in documenting information related to violations committed against children and recommending appropriate courses of action. Nevertheless, the monitoring system by the OSRSG/CAAC still aims to enhance the ownership of international norms by the parties concerned. For instance, disciplinary rules and high-level focal points in the military hierarchy charged with overseeing the implementation of the accepted commitments have to be incorporated in the action plans (see here, para. 179).

The Monitoring System by Geneva Call and the ICRC

The Deeds of Commitment developed by Geneva Call are another tool that aims to promote ownership of international standards among armed groups. Four thematic Deeds have been developed (see here, here, here and here). Specifically, a Deed of Commitment constitutes a unilateral act that provides armed groups with the opportunity to commit to specific IHL and human rights norms. For example, the first Deed of Commitment developed by Geneva Call invites armed groups to commit to a total ban on anti-personnel mines and cooperation for mine action. Once an armed groups signs a Deed of Commitment, a system of supervision of the commitments undertaken by the signatory kicks in. It is interesting to note that the monitoring system encompasses functions and mechanisms that resemble the state-centric models of supervision. Because of that, the signatory armed groups are given an active role in the monitoring process. To be more specific, armed groups are requested to submit implementation reports and have the opportunity to participate in meetings of signatories to Geneva Call’s Deed of Commitment. It should be noted that self-reporting is only one component of the monitoring process. It is further supplemented by external monitoring, including monitoring by Geneva Call or third-party monitoring. Moreover, if allegations of non-compliance with the Deed of Commitment arise, verification missions can take place to ascertain the facts and facilitate the return to an attitude of respect for international norms. For example, a fact-finding mission was deployed to the Philippines in 2009 in relation to alleged violations of the Deed of Commitment banning anti-personnel mines by one of its signatories. The monitoring approach followed by Geneva Call highlights that self-reporting can be a useful tool for supervising compliance with IHL and human rights norms provided that it is supplemented by other mechanisms and functions. In addition, Geneva Call’s inclusive approach to monitoring places the signatory armed group at the centre of the process and aims to enhance the ownership of the commitments undertaken through their integration in the group’s internal structure, for example, through the revision of internal rules and regulations (see here, at 9) and the development of internal monitoring mechanisms (see here, at 13).

Apart from Geneva Call and the OSRSG/CAAC, the International Committee of the Red Cross (ICRC), in accordance with its mandate and modalities of work, also tries to engage with all parties to a NIAC, offering its services to them in accordance with the right of humanitarian initiative under Common Article 3 to the GCs. Through its field delegations, the ICRC is able to collect information on the situation of victims affected by armed conflict and engage in bilateral and confidential dialogue with the parties concerned in order to enhance the protection and assistance of all people affected by armed conflicts.

Concluding Remarks

As identified by the ICRC in its 2015 IHL Challenges report, better respect for IHL is the main challenge the international community is facing nowadays. Having in place effective compliance mechanisms that can supervise the conduct of the parties to the conflict and in case of violations, facilitate the restoration of respect for IHL is therefore key. The treaty-based mechanisms under the Geneva Conventions and other specialised treaties within the IHL framework cannot undertake this task on their own, particularly during NIAC. With certain exceptions, the specialised IHL treaties such as the Ottawa Convention or the Convention on Certain Conventional Weapons, do not provide for a robust system of treaty monitoring and their mechanisms only address compliance by the states parties. In the case of the Geneva Conventions, the practice of the IHFFC is limited to exclusively rely on it to supervise compliance by parties to NIAC.

In a perfect world, we could just focus on states’ obligations under IHL and monitor their implementation through mechanisms that only address states. However, this is not a perfect world and armed groups are a reality that we have to acknowledge and take into account when addressing matters related to compliance with IHL. The lack of political will – at least in the context of the GCs – impedes the strengthening of the existing compliance system and the adoption of a new one, let alone the establishment of a mechanism that can monitor compliance by all parties to a NIAC, states and armed groups alike. In light of the above, a complementary approach to overseeing compliance with IHL norms during NIAC is the way forward.

The co-existence of formal and informal mechanisms with different mandates enables the monitoring of respect for IHL by all parties to a NIAC. In addition, their interaction ensures that recommendations issued in the framework of other mechanisms are taken into account and brought to the attention of the party concerned. For instance, the reports of the Secretary-General on children and armed conflict recommend the enactment of legislation implementing the CRC and the ratification of the Optional Protocol (see here, para. 103, 146), and vice versa, the CRC Committee also recommends the cooperation of the state party with the MRM (see here, para. 15; here, para. 46). The latter as well as Geneva Call also monitor armed groups’ compliance with international norms relevant to the protection of children in armed conflict. Because of that, Geneva Call developed a policy of ‘strategic complementarity’ (pg. 30) with the goal of avoiding overlaps with other actors involved in the same thematic area. The value of the non-treaty based mechanisms to monitor respect for IHL in NIAC should be not underestimated; on the contrary, this type of mechanisms should be expanded to cover additional thematic areas, complement the formal monitoring system and ensure that armed groups’ implementation of IHL during NIAC can be supervised. A positive development in this direction concerns the launch in 2018 of a new Deed of Commitment on the protection of healthcare in armed conflict by Geneva Call.

Based on the above analysis, all possible avenues including the existing formal compliance mechanisms within the IHL and international human rights law framework, non-traditional mechanisms as well as mandates and organisations with capacity to address both states and non-state actors should be put into use to monitor and ensure compliance with IHL. The road to effectively monitoring compliance with IHL during NIAC is that of complementarity.

Monitoring IHL Compliance during Non-International Armed Conflicts: The Need for a Complementary Approach – Part I

March 17, 2020

Sofia Poulopoulou is a PhD researcher at the Grotius Centre for International Legal Studies at Leiden University under the supervision of Professor Nico Schrijver and Associate Professor, Dr. Robert Heinsch. Her doctoral research focuses on implementation mechanisms for International Humanitarian Law (IHL). Sofia is also affiliated with the IHL Clinic of the Kalshoven-Gieskes Forum at Leiden University, where she lectures on IHL and supervises the research project ‘IHL in Action: Respect for the Law on the Battlefield’, undertaken in cooperation with the ICRC. She has previously worked for the ICC and the Coalition for the International Criminal Court. She holds an LL.M. from Maastricht University and a Degree in Law from the Democritus University of Thrace.

The majority of armed conflicts taking place nowadays are non-international in character. In this type of conflicts, the fighting takes place between governmental armed forces and organised armed groups or between such groups within a state. Despite the predominance of non-international armed conflicts (NIAC), treaty-based compliance mechanisms applicable to this type of situations are either limited or non-existent. For instance, neither Common Article 3 nor Additional Protocol II to the 1949 Geneva Conventions (GCs), which regulate NIAC, provide for any supervisory mechanisms. States have only agreed to the establishment of compliance mechanisms for international armed conflicts (IAC), that is to say conflicts involving two or more states. However, even in that context, states are not eager to make use of the existing compliance mechanisms (see GC I-IV, Articles 8/8/8/9, Articles 52/53/132/149; Additional Protocol I, Art. 7, Art. 90).

In light of the above, this blog post presents and analyses the existing compliance mechanisms for NIAC and argue that a complementary approach to monitoring respect for IHL is the way forward. Part I focuses on the treaty-based compliance mechanisms applicable to NIAC within the IHL framework. In addition, references to the monitoring system of the Convention on the Rights of the Child (CRC) and the Optional Protocol to the CRC on the involvement of children in armed conflict are made. Although not strictly falling under the IHL framework, the aforementioned treaties are relevant due to the Optional Protocol’s focus on children in armed conflict and the obligation of states parties under Article 38(1) of the CRC “to respect and to ensure respect for rules of IHL applicable to them in armed conflicts which are relevant to the child.” Part II of the blog post discusses non-treaty based mechanisms that engage with armed groups and/or states and monitor compliance with IHL norms. Throughout the analysis, particular attention will be paid to the following issues: (i) whether the compliance mechanisms are designed to monitor the conduct of states, armed groups or both during NIAC; and (ii) the type of mechanisms that currently exist.

Geneva Conventions and their Additional Protocols

Starting first with the core IHL treaties, it has already been established that no compliance mechanisms are included in Common Article 3 and Additional Protocol II to the GCs. A possible way to monitor compliance by parties to a NIAC is through the International Humanitarian Fact-Finding Commission (IHFFC) established by Additional Protocol I to the GCs. While it was created for inter-state armed conflicts, the IHFFC has expressed its willingness to extend its competence to NIAC. Indeed, the first mission of the IHFFC was undertaken in 2017 in the context of a NIAC, as the IHFFC was mandated by the OSCE to undertake an independent forensic investigation into the death and injury of staff of the OSCE mission to Eastern Ukraine. As I have argued here, the ‘good offices’ competence of the IHFFC was the legal basis for the investigation, since it was requested by the OSCE and not by any of the parties to the conflict. If it had been requested by Ukraine, the consent by the non-state party to the conflict would have also been necessary in accordance with article 90(2)(d) of Additional Protocol I (see here and here). So far, the IHFFC has been used only this once. In 2019, the IHFFC offered its services to Ukraine and Russia in relation to the situation in the Kerch Strait but such offer was not taken up by the states concerned.

While not a compliance mechanism per se, the so-called external compliance dimension of Common Article 1 can also serve as a possible avenue for ensuring compliance with IHL during NIAC. It should be noted that Common Article 1 applies (para. 125) to internal armed conflicts and entails the obligation of states to ensure respect for IHL rules applicable to NIAC by armed groups. Pursuant to the updated ICRC Commentary (para. 153), “[s]tates, whether neutral, allied or enemy, must do everything reasonably in their power to ensure respect for the Conventions by others that are Party to a conflict.” The Commentary further elaborates that the duty of states to ensure compliance by others includes both positive and negative obligations (para. 154). The external compliance dimension of Common Article 1 was not originally envisioned by the drafters but was developed by subsequent practice. It is a positive development that supplements states’ obligation to ensure respect for IHL by their organs and the civilian population under their control. Keeping in mind the frequency of partnered operations both during IAC and NIAC, the external dimension of Common Article 1 is of particular importance in such contexts; partnered warfare facilitates the supervision by states of the lawfulness of the conduct of their partners and the adoption of measures aimed at ensuring respect for IHL by all actors involved.

Specialised IHL Treaties

In the case of other treaties within the IHL framework that apply to NIAC, their monitoring system appears in principle more developed compared to that of the GCs and their Additional Protocols. For example, the Convention on Certain Conventional Weapons encompasses reporting obligations and meetings of the High Contracting Parties (para. 2, 5); the Ottawa Convention also provides for fact-finding missions as means of clarifying allegations of non-compliance; or in the case of the Chemical Weapons Convention it establishes an intergovernmental body in charge of overseeing the implementation of the Convention, the OPCW. Nevertheless, the compliance mechanisms included in the aforementioned Conventions are only addressed to states. The same holds true for the Second Protocol to the Hague Convention for the Protection of Cultural Property in Armed Conflict which also applies to NIAC. Its compliance system, consisting of periodic reporting, meetings of the parties and the Second Protocol Committee, can only monitor states’ compliance with treaty obligations. Moreover, with the exception of the Chemical Weapons Convention, the reporting function solely focuses on self-reporting by states; no review of the information submitted can be undertaken as there is no body or forum specifically mandated with this task. The function of the Second Protocol Committee to “consider and comment on reports of the Parties [and] seek clarifications as required” is the closest that we get within the IHL framework to a mechanism overseeing states’ reporting obligations. Nevertheless, as I have argued here, the Second Protocol Committee does not appear to discharge in full its mandate with regard to the reporting obligations of states.

The CRC and the Optional Protocol to the CRC on the involvement of children in armed conflict

Unlike the treaties within the IHL framework, the implementation of the international human rights treaties is monitored by bodies of independent experts. To be more specific, the CRC stipulates that the states parties undertake to submit at regular intervals periodic reports to the Convention’s monitoring body, the CRC Committee. The latter is the body of 18 independent experts that examines states parties’ reports, requests clarifications and issues concluding observations. In relation to the CRC Committee’s approach in monitoring the implementation of Article 38(1) of the CRC, which directly refers to the respect for IHL rules relevant to the child, the following observations can be made. First, even if the CRC Committee – in line with the wording of Article 38(1) of the CRC – refrains from classifying conflicts in its concluding observations, the situations that trigger the applicability of Article 38 are in most cases NIAC. Moreover, the Committee’s practice to refer to IHL principles and protections in its concluding observations is not consistent. The Committee sometimes makes direct references to IHL protections, identifies violations thereof and recommends their respect (see here, para. 49; here, para. 38, 39; and here, para. 25). This approach by the Committee focuses on the rules and principles applicable to the conduct of hostilities and concerns a small number of its concluding observations. The latter usually do not include any explicit mention of IHL (see here, para. 63; here, para. 83; and here, para. 70). Furthermore, although the Committee is mandated to oversee states’ compliance with Article 38 of the CRC, when it is a NIAC it sometimes refers to all parties to the conflict in its concluding observations (see here, para. 66; here, para. 69; and here, para. 60). In addition, when the Committee deals with IHL issues it does not enter into a legal analysis of the IHL principles and protections. This may be explained by the fact that the Committee does not undertake an adjudicative function in its concluding observations. The individual communications procedure, which allows individuals to submit complaints about violations of their rights under the CRC and the Optional Protocol to the CRC, could be a more suitable avenue for a more comprehensive analysis and assessment of compliance with IHL per Article 38 of the CRC by the states parties. While the Optional Protocol to the CRC on an individual communications procedure entered into force in 2014, no communications related to Article 38 of the Convention have been submitted up to this moment.

The CRC Committee also monitors the implementation of the Optional Protocol to the CRC. The Protocol imposes obligations on states parties to ensure that children under the age of 18 are not forcibly recruited or take direct part in hostilities. Article 4 of the Protocol, in particular, states that “armed groups […] should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.” Considering that the age standard set by the Optional Protocol is not the same as under IHL, the Committee’s monitoring of the implementation of the Protocol does not amount to overseeing compliance with the IHL rules regulating the recruitment and use of children in hostilities (API, Art. 77; APII, Art. 4). It is true that the Optional Protocol to the CRC does not incorporate a provision similar to Article 38(1) of the CRC. Nonetheless, it does recall in its preamble the obligation of each party to an armed conflict to abide by IHL rules. A closer look at the Committee’s concluding observations to the periodic reports under the Optional Protocol shows that the Committee has, in certain instances, reaffirmed the obligations of states parties’ towards the protection of civilians and civilian objects and recommended that they act in respect of the principles of distinction, proportionality, and precaution (see here, para. 17; here, para. 9; and here, para. 18). In addition, the Committee frequently recommends in its concluding observations (see here, para. 15; here, para. 46) the cooperation with the Office of the Special Representative of the Secretary-General for Children and Armed Conflict (OSRSG/CAAC). Given the state-centric nature of the mechanisms analysed so far, the supervision of armed groups’ respect for IHL norms during NIAC takes places through non-treaty based mechanisms, including for example the Monitoring and Reporting Mechanism on grave violations committed against children in armed conflict. To provide a comprehensive overview of the existing compliance mechanisms, the second part of the blog post will analyse the monitoring system developed by the OSRSG/CAAC and other organisations that engage with parties to NIAC.

Legal Roundup – 2019

March 11, 2020

We are very pleased to present the legal roundup for 2019, that contains publications on issues related armed groups and international law, non-international armed conflict and the relationship between IHL and IHRL. If you have a 2019 publication which you think should be included in this roundup, please do not hesitate to contact me at my uu.nl address.

Thanks go to Sam Jackson for preparing this legal roundup, which was finalised with input from Ezequiel Heffes and me. Please note that due to paywalls and your institution’s permissions, the given link may not always take you to the text of the article. The Armed Groups and International law blog has published legal roundups since 2012. For previous versions of the legal roundup, see here.

Armed Non-State Actors and IHL/IHRL

Ariel I. Ahram (2019) Sexual Violence, Competitive State Building, and Islamic State in Iraq and Syria, Journal of Intervention and Statebuilding, 13:2, 180-196

Askari P. and Hosseinnejad, K. (2019) Non-State Courts: Illegal or Conditional? The Case of Da’esh Courts, Journal of International Humanitarian Legal Studies, Volume 10, Issue 2, pages 240-264.

Callamard, A. (2019). Towards international human rights law applied to armed groups. Netherlands Quarterly of Human Rights, 37(1), 85–100

Condra, L. and Wright, A. Civilians, Control, and Collaboration during Civil Conflict, International Studies Quarterly, Volume 63, Issue 4, December 2019, Pages 897–907

Fazal, Tanisha M and Konaev, Margarita, Homelands versus Minelands: Why Do Armed Groups Commit to the Laws of War?, Journal of Global Security Studies, Volume 4, Issue 2, April 2019, Pages 149–168

Fortin, Katharine, Armed Groups and the DOD Manual: Shining a Light on Overlooked Issues  in Michael A. Newton (ed), The United States Department of Defense Law of War Manual: Commentary and Critique (Cambridge University Press 2019).

Foster, Margaret, Siegel, David, Pink Slips from the Underground: Changes in Terror Leadership, International Studies Quarterly, Volume 63, Issue 2, June 2019, Pages 231–243

Galani, Sofia, Terrorist Hostage-taking and Human Rights: Protecting Victims of Terrorism under the European Convention on Human Rights, Human Rights Law Review, Volume 19, Issue 1, February 2019, Pages 149–171

Gordon, Neve and Perugini, Nicola, ‘Hospital Shields’ and the Limits of International Law, European Journal of International Law, Volume 30, Issue 2, May 2019, Pages 439–463

Haer, Roos (2019) Children and armed conflict: looking at the future and learning from the past, Third World Quarterly, 40:1, 74-91

Heffes E., Kotlik M.D., Ventura M.J. (2020) Introduction: The Functions and Interactions of Non-State Actors in the Realm of International Humanitarian Law. In: Heffes E., Kotlik M., Ventura M. (eds) International Humanitarian Law and Non-State Actors. T.M.C. Asser Press, The Hague

Heffes, Ezequiel (2019), Armed Groups and the Protection of Health Care, 95 INT’L L. STUD. 226

Henckaerts J-M. and Wiesener, C. Human Rights Obligations of Non-State Armed Groups: An Assessment Based on Recent Practice. In: Heffes E., Kotlik M., Ventura M. (eds) International Humanitarian Law and Non-State Actors. T.M.C. Asser Press, The Hague, pp. 195-227.

Holtermann,H.  Diversionary Rebel Violence in Territorial Civil War, International Studies Quarterly, Volume 63, Issue 2, June 2019, Pages 215–230

Hiemstra H., Nohle E. (2019) The Role of Non-State Armed Groups in the Development and Interpretation of International Humanitarian Law. In: Gill T., McCormack T., Geiß R., Krieger H., Paulussen C. (eds) Yearbook of International Humanitarian Law, Volume 20, 2017.

Masullo J., Mouly C., Garrido M.B. (2019) Alternative Forms of Civilian Noncooperation with Armed Groups: The Case of Samaniego in Colombia. In: Mouly C., Hernández Delgado E. (eds) Civil Resistance and Violent Conflict in Latin America. Studies of the Americas. Palgrave Macmillan, Cham

Mégret, Frédéric and Swinden, Chloe, Returning the ‘Fallen Terrorist’ for Burial in Non-international Armed Conflicts, Journal of International Humanitarian Legal Studies, Volume 10 (2019): Issue 2 (Nov 2019)pp, 337–370

Perkoski, E., Internal Politics and the Fragmentation of Armed Groups, International Studies Quarterly, Volume 63, Issue 4, December 2019, Pages 876–889

Purdeková, Andrea, Rectified Sites of Violence from Westgate to Lampedusa: Exploring the Link between Public Amnesia and Conflict in Ongoing Confrontations, International Journal of Transitional Justice, Volume 13, Issue 3, November 2019, Pages 504–523

Rothkopf, Ilana,  International Humanitarian Law and Non-State Practice in Armed Conflict: Combatant’s Privilege and Kurdish Fighters in Syria, Journal of Conflict and Security Law, Volume 24, Issue 2, Summer 2019, Pages 271–296

Ventura, Manuel J., Automatic Criminal Liability for Unlawful Confinement (Imprisonment) as a War Crime? A Potential Consequence of Denying Non-State Armed Groups the Power to Detain in Non-International Armed Conflicts. Ezequiel Heffes, Marcos Kotlik & Manuel J. Ventura (eds), International Humanitarian Law and Non-State Actors: Debates, Law and Practice (The Hague/Berlin, T.M.C. Asser Press/Springer, 2020), pp. 149-168.

Watkin, K. (2019), Medical Care in Urban Conflict, 95 INT’L L. STUD. 49

Yishai, B, Save the Injured – Don’t Kill IHL: Rejecting Absolute Immunity for ‘Shielding Hospitals’, European Journal of International Law, Volume 30, Issue 2, May 2019, Pages 465–480

Non-International Armed Conflicts (General)

Bachar, G.  J. (2019) “Collateral Damages: Domestic Monetary Compensation for Civilians in Asymmetric Conflict,” Chicago Journal of International Law: Vol. 19: No. 2, Article 2

Bartels, R. (2017) A Fine Line Between Protection and Humanisation: The Interplay Between the Scope of Application of International Humanitarian Law and Jurisdiction over Alleged War Crimes Under International Criminal Law, Yearbook of International Humanitarian Law, Vol 20, 2017, pp33-74

Bellal, Annyssa, The War Report 2018, Geneva Academy of International Humanitarian Law and Norwegian Center for Human Rights, April 2019

D’Cunha S. (2019) The Notion of External NIACs: Reconsidering the Intensity Threshold in Light of Contemporary Armed Conflicts. In: Gill T., McCormack T., Geiß R., Krieger H., Paulussen C. (eds) Yearbook of International Humanitarian Law, Volume 20, 2017

Clapham, Andrew (2019) Detention and Prosecution as Described in the DOD Manual, in Newton, M., The United States Department of Defense Law of War Manual: Commentary and Critique (Cambridge University Press 2018), pp282-297

Dumas, H. (2019). When children remember: A history of the Tutsi genocide through the eyes of children (1994–2006). International Review of the Red Cross, 101(910), 37-57

Galvez Lima, X. Inked or Not: Maras and Their Participation in El Salvador’s Recent Armed Conflict, Journal of International Humanitarian Legal Studies, Volume 10, Issue 2, 265-302.

Graham, David, E. (2019) The Manuel’s Redefined Concept of Non-International Armed Conflict: Applying Faux LOAC to a Fictional NIAC in Newton, M., The United States Department of Defense Law of War Manual: Commentary and Critique (Cambridge University Press 2018),pp 141-160

Haq, Adil Ahmad (2019) Misdirected: Targeting and Attack under the DOD Manual, in Newton, M., The United States Department of Defense Law of War Manual: Commentary and Critique (Cambridge University Press 2018),pp 225-260

Kleffner, J. (2019), The Legal Fog of an Illusion: Three Reflections on “Organization” and “Intensity” as Criteria for the Temporal Scope of the Law of Non-International Armed Conflict, 95 INT’L L. STUD. 161

Krüger, H, (2019), “Famine Crimes and Forced Starvation” – Starvation as a Method of Warfare – a Plea for the Prosecution of Crimes According to § 11 I S. 1 Nr. 5 VStGB, Humanitäres Völkerrecht, Volume 2, Issue 3-4, pg.157

Quinn, J, Joshi, M, and Melander, E., One Dyadic Peace Leads to Another? Conflict Systems, Terminations, and Net Reduction in Fighting Groups, International Studies Quarterly, Volume 63, Issue 4, December 2019, Pages 863–875

Smith, T. (2019). Critical perspectives on environmental protection in non-international armed conflict: Developing the principles of distinction, proportionality and necessity. Leiden Journal of International Law, 32(4), 759-779

Jus ad Bellum

Bakircioglu, O, The Disputed Bounds of Muslim Warfare, Journal of Conflict and Security Law, Volume 24, Issue 2, Summer 2019, Pages 239–269

De Wet, E. (2019). The invocation of the right to self-defence in response to armed attacks conducted by armed groups: Implications for attribution. Leiden Journal of International Law, 32(1), 91-110

Gill, T. and Tibori-Szabò, Twelve Key Questions on Self-Defense against Non-State Actors, 95 International Law Studies 467 (2019), p467-505

Martin, C. (2019), Challenging and Refining the “Unwilling or Unable” Doctrine, Vanderbilt Journal Of Transnational Law, VOL. 52:387

Müllerson, R.  Self-defence against Armed Attacks by Non-State Actors, Chinese Journal of International Law, Volume 18, Issue 4, December 2019, Pages 751–775

Schweiger, E. (2019). ‘Targeted killing’ and the lack of acquiescence. Leiden Journal of International Law, 32(4), 741-757

Tzimas, T. Self-Defense by Non-State Actors in States of Fragmented Authority, Journal of Conflict and Security Law, Volume 24, Issue 2, Summer 2019, Pages 175–199

International Criminal Law

D’Alessandra, Federica and Gillett, M.  The War Crime of Starvation in Non-International Armed Conflict, Journal of International Criminal Justice, Volume 17, Issue 4, September 2019, Pages 815–847

Amoroso, Alessandro, Should the ICC Assess Complementarity with Respect to Non-state Armed Groups? Hidden Questions in the Second Al-Werfalli Arrest Warrant, Journal of International Criminal Justice 16 (2018) 1063-1091

Black, A. (2019), Sexual Violence Against Men and Boys in Armed Conflict and its Prosecution before International Criminal Tribunals, Humanitäres Völkerrecht, Volume 2, Issue 3-4, pg. 139

Pérez-León-Acevedo, Juan-Pablo, Assessing Victim Participation during Sentencing at the International Criminal Court, Journal of International Criminal Justice, Volume 17, Issue 2, May 2019, Pages 431–451

Keydar, Renana, ‘Lessons in Humanity’: Re-evaluating International Criminal Law’s Narrative of Progress in the Post 9/11 Era, Journal of International Criminal Justice, Volume 17, Issue 2, May 2019, Pages 229–257

Spadaro, Alessandra, Punish and Be Punished? The Paradox of Command Responsibility in Armed Groups, Journal of International Criminal Justice, 0 (2020), 1-30 (advance copy)

Wheeler, C,  Justice in the Absence of the Accused: Can the Rights of Victims be Fully Vindicated without the Participation of the Accused?, Journal of International Criminal Justice, Volume 17, Issue 2, May 2019, Pages 413–430

Targeting and Detention

Beinlich, Leander, Drones, Discretion, and the Duty to Protect the Right to Life: Germany and its Role in the US Drone Programme before the Higher Administrative Court of Münster

(December 19, 2019). Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2019-22.

van den Boogaard, J.C., Vermeer A. (2019) Precautions in Attack and Urban and Siege Warfare. In: Gill T., McCormack T., Geiß R., Krieger H., Paulussen C. (eds) Yearbook of International Humanitarian Law, Volume 20, 2017

Crawford, Emily, (2019) Detention in Non-International Armed Conflicts. In: Suzannah Linton et al. (eds) Asia-Pacific Perspectives on International Humanitarian Law, Cambridge University Press, 2019, pp. 251-266.

Gregory, T. (2019). Dangerous feelings: Checkpoints and the perception of hostile intent. Security Dialogue, 50(2), 131–147

Herman O. (2019) Holding Armed Groups to Account under International Human Rights Law: An Analysis of the Under-Explored Practice of Truth Commissions, Human Rights & International Legal Discourse, vol 13(2), pg. 48

Holterhus T.P. (2019) Targeting the Islamic State’s Religious Personnel Under International Humanitarian Law. In: Gill T., McCormack T., Geiß R., Krieger H., Paulussen C. (eds) Yearbook of International Humanitarian Law, Volume 20, 2017

Mégret, Frédéric, Detention by Non-State Armed Groups in Non-International Armed Conflicts: International Humanitarian Law, International Human Rights Law and the Question of Right Authority. in Ezequiel Heffes, Marcos D. Kotlik & Manuel Ventura (eds.), International Humanitarian Law and Non-State Actors: Debates, Law and Practice, T.M.C.

Moodrick-Even Khen, Hilly, From Knives to Kites: Developments and Dilemmas around the Use of Force in the Israeli–Palestinian Conflict since ‘Protective Edge’, Journal of International Humanitarian Legal Studies, 10(2019) 303-336

Olasolo H., Tenorio-Obando F. (2019) Are the Targets of Aerial Spraying Operations in Colombia Lawful Under International Humanitarian Law?. In: Gill T., McCormack T., Geiß R., Krieger H., Paulussen C. (eds) Yearbook of International Humanitarian Law, Volume 20, 2017

U.S. Supreme Court Denies Certiorari in Habeas Case Brought by Guantánamo Bay Detainee Challenging His Continuing Detention. (2019). American Journal of International Law, 113(4), 849-855

R. J. Vogel, (2019), Beyond Geneva: Detainee Review Processes in Non-International Armed Conflict—A U.S. Perspective, 95 INT’L L. STUD. 94

Weapons

Alley, Roderic,  Leaking Like a Sieve? Transfer Restraints on Small Arms, Light Weapons and Ammunition, Journal of Conflict and Security Law, Volume 24, Issue 2, Summer 2019, Pages 325–342

Biller, J. T. and Schmitt, M.N. (2019), Classification of Cyber Capabilities and Operations as Weapons, Means, or Methods of Warfare, 95 INT’L L. STUD. 179

Ferro, Luca, Western Gunrunners, (Middle-)Eastern Casualties: Unlawfully Trading Arms with States Engulfed in Yemeni Civil War?, Journal of Conflict and Security Law, Volume 24, Issue 3, Winter 2019, Pages 503–535

Klein, N, (2019), Maritime Autonomous Vehicles within the International Law Framework to Enhance Maritime Security, 95 INT’L L. STUD. 244

Lorenzat, A. (2017-2018) The current state of customary international law with regard to the use of chemical weapons in non-international armed conflicts The military law and law of war review, Vol. 56, no. 2, p. 349-409

Schmitt, M. (2019). Wired warfare 3.0: Protecting the civilian population during cyber operations. International Review of the Red Cross, 101(910), 333-355

Foreign Fighters

Baker-Beall, C. (2019). The threat of the ‘returning foreign fighter’: The securitization of EU migration and border control policy. Security Dialogue, 50(5), 437–453

Cuyckens, Hanne and Paulussen, Christophe, The Prosecution of Foreign Fighters in Western Europe: The Difficult Relationship Between Counter-Terrorism and International Humanitarian Law, Journal of Conflict and Security Law, Volume 24, Issue 3, Winter 2019, Pages 537–565

Krähenmann, S. and Vandendriessche, P., From child soldier to child ‘terrorist’: safeguarding innocence from counter-terrorism, ICRC Humanitarian Law & Policy Blog.

Mironova, V, From Freedom Fighters to Jihadists. Human Resources of Non State Armed Groups, Oxford University Press, 2019.

International Responsibility

Mackenzie-Gray Scott, Richard,  State Responsibility for Complicity in the Internationally Wrongful Acts of Non-State Armed Groups, Journal of Conflict and Security Law, Volume 24, Issue 2, Summer 2019, Pages 373–407

Transitional Justice

Akello, G. Reintegration of Amnestied LRA Ex-Combatants and Survivors’ Resistance Acts in Acholiland, Northern Uganda, International Journal of Transitional Justice, Volume 13, Issue 2, July 2019, Pages 249–267

Bussmann, Margit (2019) Military Integration, Demobilization, and the Recurrence of Civil War, Journal of Intervention and Statebuilding, 13:1, 95-111

Gordon, Eleanor,  (2019) Gender and Defence Sector Reform: Problematising the Place of Women in Conflict-Affected Environments, Journal of Intervention and Statebuilding, 13:1, 75-94

Hartzell, C. and  Hoddie M., Power Sharing and the Rule of Law in the Aftermath of Civil War, International Studies Quarterly, Volume 63, Issue 3, September 2019, Pages 641–653

Mallinder, L. (2019). Metaconflict and international human rights law in dealing with Northern Ireland’s past, Cambridge International Law Journal, 8(1), 5-38

García Martín, L.  (2019) Looking for the ‘Missing Piece of the Puzzle’: Corporate Accountability in Transitional Justice, Human Rights & International Legal Discourse, vol. 13(1) pg. 21

Sedacca, N.  The ‘turn’ to Criminal Justice in Human Rights Law: An Analysis in the Context of the 2016 Colombian Peace Agreement, Human Rights Law Review, Volume 19, Issue 2, June 2019, Pages 315–345

van den Herik, L. and van Reisenm M., International Commissions of Inquiry in a Networked World: Unveiling the Roles of Diasporas through an Eritrean Case Study, International Journal of Transitional Justice, Volume 13, Issue 3, November 2019, Pages 417–434

Wesche, P., Business Actors, Paramilitaries and Transitional Criminal Justice in Colombia, International Journal of Transitional Justice, Volume 13, Issue 3, November 2019, Pages 478–503

Stockwell, J. (2019). Does individual and collective remembrance of past violence impede or foster reconciliation? From Argentina to Sri Lanka. International Review of the Red Cross, 101(910), 97-124

Blog symposium

Between 16-23rd September 2019, there was a book symposium on Armed Groups and International Law and Opinio Juris on Tilman Rodenhäuser’s book Organizing Rebellion.  In addition to introductory and concluding comments from Tilman himself, the symposium included posts the following posts: 

Sassòli,M.  Organizing Rebellion Symposium: Sex and Crime*, Armed Groups and International Law Blog

Fortin, K. Organizing Rebellion Symposium: A Multi-Faceted Study of Armed Groups and International Law, Opinio Juris

Blank, L. Organizing Rebellion Symposium: Translating the Organization Requirement into the Operational Context, Armed Groups and International Law Blog

Heffes, E, Organizing Rebellion Symposium: Non-State Armed Groups’ Organizational Structures–Some Thoughts and Inquiries, Opinio Juris

Murray, D., Organizing Rebellion Symposium: Overcomplicating organisation? Is there really a distinction between the IHL and IHRL organisation threshold ? Armed Groups and International Law

O’Brien, Melanie, Organizing Rebellion Symposium: The Second-Fiddle Perpetrators–Non-State Génocidaires, Opinio Juris

Holvoet, Mathias, Organizing Rebellion Symposium: Crimes Against Humanity Committed by Non-State Actors. How Much ‘Organizing’ Do They Require?, Armed Groups and International Law Blog

Ashraph, Sareta, Organizing Rebellion Symposium: Who Can Commit Genocide? A Discerning Analysis of Non-State Entities as Perpetrators, Opinio Juris

Babington-Ashaye, Adejoké, Organizing Rebellion Symposium: Context or Abstract? A victim-centric approach to understanding key elements of crimes against humanity, Armed Groups and International Law

Reports

Ashley Jackson and Rahmatullah Amiri, Insurgent Bureaucracy: How the Taliban Makes Policy, United States Institute of Peace, 2019.

ICRC report on IHL and the challenges of contemporary armed conflicts (2019), ICRC.

Artificial intelligence and machine learning in armed conflict: A human-centred approach (2019), ICRC

The potential human cost of cyber operations (2019), ICRC

Negotiation of humanitarian access in North Kivu: The perception of armed non-State actors, communities and humanitarians (2019), Geneva Call

The War in Catatumbo, Abuses by Armed Groups Against Civilians Including Venezuelan Exiles in Northeastern Colombia (2019), Human Rights Watch

Paulussen, Christophe, Cuyckens, Hanne and Fortin, Katharine, The Prosecution of Foreign Fighter under International Humanitarian Law: Misconceptions and Opportunities, International Centre for Counter-Terrorism, 2019

The UN and the protection of children affected by armed conflict: how States curtail a multi-stakeholder, dialogue-based approach

February 27, 2020

Marcos Kotlik is the Academic Coordinator of the Observatory of IHL at the University of Buenos Aires (UBA), and a PhD in International Law candidate at the Graduate Institute of International and Development Studies. He holds a Law Degree and a Masters in International Relations from UBA, and an LLM from the University of Michigan Law School. He is a co-editor of International Humanitarian Law and Non-State Actors

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The situation of children affected by armed conflict (CAAC) has been one of the UN’s priorities when engaging with the parties to the conflict in South Sudan. Since 2012, several action plans were adopted within the UN’s CAAC framework, in order to end and prevent the recruitment and use of children and other violations. In the last five years, more than 3,500 children were released and reintegrated to civilian life; however, a few days ago UNICEF announced that it lacked the funds – an estimate USD 2,000 per child – to continue providing support, in particular for 900 former child soldiers now registered for release. This incident is not isolated, but a reflection of various limitations that affect the CAAC framework.

The UN’s framework focuses (paras. 67-68) on six grave violations committed against children: killing or maiming; recruiting or using child soldiers; attacks against schools or hospitals; rape or other forms of grave sexual violence; abduction; and denial of humanitarian access. Through a Monitoring and Reporting Mechanism (MRM), set up by the Secretary-General and endorsed by the Security Council, information is gathered at the country level, reviewed and integrated at headquarters, and then published in various UN reports. A Working Group on CAAC, composed by all Security Council members, reviews the reports and makes recommendations to the Council on possible measures to promote the protection of children. As to States and non-State armed groups (NSAGs) that commit one or more violations and are listed by the Secretary-General, the Security Council calls them to engage in dialogue in order to negotiate action plans. Building on the ideas developed in a recently published book chapter, this post provides an overview of certain features that make this framework a useful strategy to address non-compliance with humanitarian rules, especially by NSAGs. It then highlights the obstacles that the framework must overcome in order to be ultimately successful, in South Sudan and beyond.

A strategy to improve compliance through dialogue and cooperation

One of the CAAC framework’s main objectives is for non-compliant parties to develop and adopt actions plans that will lead to compliance with international obligations through the undertaking of specific and time-bound steps. This requires a concerted effort of persuasion by UN personnel and other humanitarian actors, which has particular features that make it especially appropriate as a strategy to address non-compliance by NSAGs. 

First, much like engagement strategies employed by the ICRC, NGOs such as Geneva Call, and even some States (see e.g. here, here, here and here), the CAAC framework is a practical approach, based on dialogue and cooperation. It entails a recognition that NSAGs have multiple reasons to respect humanitarian rules and, by the same token, that non-compliance is often not the reflection of unwillingness (see e.g. here, here, here, here and here). Thus, it identifies NSAGs’ willingness where it already exists, and it seeks to increase their interest in complying with international law. For incentives to work, the framework takes into account the varying circumstances of armed conflicts, including NSAGs’ military structure, size, modus operandi and other characteristics (para. 15).

Second, the CAAC framework ensures transparency in the production of information about the parties’ performance in relation to humanitarian rules. On the ground, UN personnel already deployed (e.g. from UNHCR, OHCHR, UNDP, UNICEF or UNDPKO) and partner NGOs receive and vet information from the parties to the conflict and other relevant actors, including local communities and civil society organizations. At headquarters, the UN Special Representative of the Secretary-General (SRSG) for CAAC reviews and consolidates information, in a process that also involves governments, regional organizations, the ICRC and NGOs (here, para. 93). The participation of multiple stakeholders, including NSAGs themselves, creates opportunities for coordination among actors, and makes it easier for NSAGs to accept decisions to include or remove parties from the Secretary-General’s lists (even if these decisions have also received some criticism). Since States are also subject to listing (see, e.g. the lists annexed to the 2019 report, including State forces and NSAGs in Myanmar, South Sudan, and Syria), this gives NSAGs some reassurance before engaging in a process led by an institution created exclusively by States.

Third, reports produced by the Secretary-General and the SRSG may spark different actions to help identify and clarify obligations in relation to the protection of children, that is, to settle disputes – this is, in particular, the goal of action plans within the CAAC framework. The mechanism, triggered by naming and shaming, is based on the parties’ desire for acceptance at the national and international level, the influence of public exposure, and the possibility of being held accountable (para. 77). By enabling NSAGs’ participation in the negotiation of action plans, the framework involves them in the reaffirmation and development of the law, helping to create a sense of ownership that can boost their willingness to comply (see e.g. here and here). Moreover, it can be appealing for NSAGs to undertake humanitarian commitments if it will make them seem as more respectful of international rules than their ‘enemy’ (see e.g here). While there is always a risk that action plans are not adopted out of a sincere wish to respect humanitarian rules, this problem is not exclusive to NSAGs, and in any case the MRM is designed to monitor compliance before any party can be delisted.

Fourth, action plans also allow for the adoption of capacity-building measures so that the parties to armed conflicts can actually abide by the law. On the one hand, NSAGs’ leadership can translate humanitarian undertakings into specific instructions that their members are capable of implementing, for instance, through codes of conduct or internal orders. On the other hand, action plans can be supported by other actors that can assist through dissemination activities or training programs. For instance, the action plan signed by the Moro Islamic Liberation Front (MILF) in 2009 contained commitments in partnership with UNICEF in order to provide training and advocacy on child protection and child rights, as well as technical support for the establishment of child protection units within the Bangsamoro Islamic Armed Forces, among others. Furthermore, capacity-building measures can also reach local communities, civil society organizations, and national agencies, strengthening children protection networks, and ensuring local ownership and sustainability (para. 81).

How do States halt engagement strategies? 

Overall, the UN’s CAAC framework has the features of a predominantly managerial approach to non-compliance, as it is focused on cooperation and problem-solving, prioritizing dialogue. By using political pressure rather than legal sanction, the framework has had a moderate success in promoting compliance through the adoption of action plans: 32 plans have been signed – the majority of them by NSAGs, such as two groups in the Central African Republic and one in Syria in 2019. Moreover, 12 parties have fully complied and achieved delisting, including e.g. the MILF in Philippines, and several groups in Côte d’Ivoire that had signed action plans in 2006. As highlighted by the UN Secretary-General, however, in 2018 there were 24,000 verified cases of violence against conflict-affected children, and 12,000 children were killed or maimed during armed conflict – the highest number since the UN SRSG position was created in 1996.

While many factors may curb attempts to reduce the effects of armed conflict on children, one that especially affects the CAAC framework is the limitation of the UN’s autonomous role by different instances of State control. Indeed, the framework is based on a complex scheme of cooperation that depends on the effective interaction between multiple actors and stakeholders. In this context, UN personnel play a key coordination role, promoting and enabling participation, acting as managers and referees of the MRM, and bearing responsibility for its results. If they are prevented from performing this role, the framework’s effectiveness is challenged.

Some limitations arise from State sovereignty, which enables the exertion of important levers of power that can slow down or even halt the MRM process. Sometimes governments do not allow timely access to conflict-affected areas, as reported in different instances by the UN Secretary-General with regard to Chad, Colombia, Myanmar, the Philippines, Sudan, and Thailand (see e.g. here, para. 150; here, paras. 113, 118, 163; here, para. 204; here, paras. 178, 186, 261). Other times they are hesitant to allow some or all forms of engagement between NSAGs and humanitarian actors, expressing concerns about the former’s legal and political status (see e.g. here, para. 158; here, para. 147; here, para. 15; here, para. 29; here, paras. 77, 192; here, para. 111; here, para. 132; here, paras. 134, 139, 142; here, p. 19).

Other ways in which States may limit the outcomes of the framework is through ingrained institutional practices. For instance, the Working Group on CAAC holds its meetings in closed sessions where the concerned States may be invited to participate (see here, para. V), and it has shown delays when dealing with some country reports (see here, pp. 366-67, 375), as well as reluctance to recommend actions against certain parties that are considered persistent violators (see here, p. 370). In fact, the Security Council has had scarce recourse to the imposition of sanctions for parties that fail to adopt action plans, or to abide by them once adopted (see here, pp. 36-37).   

Finally, the type of limitation recently observed in South Sudan is that of budgetary constraints. That States have not been providing sufficient resources and funding for the CAAC framework, including for UN actors, its local and international partners, and national governments in need, has been a concern for many years, mentioned in UN Secretary-General reports throughout the last decade and even in some UN Security Council resolutions (see e.g. here, paras. 13-14; here, para. 15). It is self-evident that without proper funding, it is not possible to ensure long-term sustainability and viability of the measures required by the framework, including the monitoring and implementation of action plans.

Final remarks: Is it possible to overcome limitations?

To strengthen the CAAC framework, it is key to overcome State reluctance to allow engagement with NSAGs, and to increase the framework’s budget. As suggested by Roberts and Sivakumaran, the benefits of engaging with NSAGs appear to be much higher than the risks perceived by States. Maintaining creative cooperation with NSAGs requires more personnel, training, and further specialization. To overcome the framework’s limitations, the capacity of the UN and other actors to interact and adapt to the changing circumstances of contemporary armed conflicts can no longer be subject to the interests and political goals of individual States. Without appropriate funding, as shown by the current situation in South Sudan, many of the benefits of the framework will simply fade out.

Conceptual problems with Colombia’s ongoing armed conflict in midst of a peace process

February 20, 2020

Tove Nyberg is a fourth year PhD student in Criminology at Stockholm University. She holds a law degree and a master’s degree in socio-legal and criminological research. Her research is on justice for children who have been involved with organised armed violence in Colombia. She specifically studies professionals within the transitional and child (criminal) justice systems and their experiences and reflections on children who have been involved with different types of organised armed groups. Tove is also currently working for the United Nations in Colombia monitoring the implementation of the peace agreement with FARC-EP from 2016.

Introduction: victim attention and treatment in violent contexts

The purpose of this post is show that after the armed conflict in Colombia was supposed to have ended, violence is just as bad – if not worse in some regards – as during the years before the 2016 peace agreement. Illustrating this with reference to qualitative field research carried out in Colombia during 2018 and 2020, this piece argues that it would be counterproductive to deny the existence of multiple ongoing armed conflicts in Colombia, at the very least for the purposes of adopting victim sensitive responses as well as prompting reconciliation and reintegration approaches.

Consequences of the application of IHL

The application of international humanitarian law (IHL) corresponds with, and affects, public policies relating to how a State responds to non-state armed groups, such as the ratio of military or police presence or the use of transitional justice mechanisms versus ordinary criminal justice mechanisms. In turn, these policies influence the attention given to victims and related populations, such as community leaders (also commonly known as social leaders or human rights defenders). Violence against community leaders who, for example, fight for the protection of land and natural resources, is arguably more likely to receive more attention from human rights organisations and the international community within a context of an armed conflict – than they would, if the violence takes place outside the context of an armed conflict

The manner in which the recruitment of children into armed groups is handled is also very different in circumstances where it is deemed that there is an armed conflict. According to IHL, as well as the relevant international human rights norms, children who are recruited by armed groups are considered as victims. Conversely, if there is no ongoing conflict, children joining armed groups are far less likely to be considered victims. In fact, if they come in contact with the justice system, the response will include one form or another of coercive criminal justice responses. These children are viewed primarily as child offenders and the circumstances around their recruitment is in the best case a mitigating circumstance for the length and type of sentence ordered by a court.

The criteria for whether a particular situation of violence amounts to armed conflict hinges partly on the conceptualisation of non-state armed groups. The understanding and perceptions of armed groups is, in this sense, also highly relevant to the treatment of victims and vulnerable populations. It is therefore important to critically review presentations and narratives of armed actors within contexts of violence and to consider the consequences for the attention and treatment of different affected populations. In the case of present-day Colombia, for example, identifying the conflict parties to may not be easy as the complex violent situation continues. In this context, community leaders are increasingly targeted and killed and various types of armed groups are recruiting (and using) new members, including children, for their operations. While the International Committee of the Red Cross (ICRC) has largely categorised the ongoing violence as five non-international armed conflicts, the subject has been disputed within the Colombian State. For example, the 2019 defence and security policy includes no specific reference to ongoing armed conflicts and the current director of the National Center for Historical Memory has questioned the existence of an armed conflict in Colombia various times.

A jumbled conflict

Colombia is currently home to numerous armed groups. They are diverse in character and with a constantly changing organisation. The historically strongest group – FARC-EP (Fuerzas Armadas Revolucionarias de Colombia-Ejército del Pueblo) – signed an important peace agreement with the Colombian government in 2016 after almost 60 years of guerrilla warfare and four years of negotiations. Some argue that Colombia, at that point, entered into a transitional phase leaving the days of armed conflict behind. However, violent conflict still persists, and different types of armed groups continue to operate, most notably the illegal drug trade. Many of these non-State actors are recruiting new members, including children of varying ages.

These groups consist, amongst others, of FARC-EP’s former members who never agreed with, and enlisted under, the new peace agreement, as well as those who have, since the adoption of the agreement, decided to leave the reincorporation track to take up arms again (often called FARC-EP dissidents). These ex-FARC-EP members are now mostly organised under smaller groups (usually called “Frentes” referring to the old FARC-EP structures). For example, the group known as Frente 1 continues the revolutionary discourse. At the same time, it is currently aiming to take control over territories known for their flourishing coca production in the south of Colombia. This is also the case for Frente 18 (currently under the command of ex-FARC-EP senator Iván Marquez), known to be heavily involved with drug trafficking and illegal exploitation of mining deposits in Antioquia and Córdoba. The numerous Frentes sometime collaborate, but also fight each other, as well as against other groups, for control over lucrative and strategic territories across Colombia. There have also been confrontations between them and the Colombian military.

Examples of such groups are Los Caparros, a group previously subcontracted by Clan del Golfo (or Autodefensas Gaitanistas de Colombia). Clan del Golfo is the largest and most powerful post-demobilisation paramilitary group with strongholds in the departments of Antioquia, Chocó and Córdoba departments, but with presence in La Guajira, Cesar, Santander and in major urban areas. A rivalling group to Clan del Golfo, was Los Rastrojos in Valle del Cauca and Cali but that seem to have almost disappeared during 2018 and 2019. Los Puntilleros are active in Meta and towards the border with Venezuela. In the south of Colombia, in Putumayo, the group La Constru is active in the south of Colombia on the border to Ecuador (and allied with FARC-EP dissident group Frente 48). These examples can arguably be traced back to AUC to varying degrees. Other prominent active armed groups are ELN (Ejército de Liberación Nacional), a Marxist-influenced guerrilla, with nation-wide reach and Los Pelusos (lingering structure from another demobilised guerrilla group – Ejército Popular de Liberación) predominantly in Norte de Santander on the border to Venezuela.

Due to the fast-changing nature and the non-public, secret nature of their operations, as well as an invisibility of recruitment of new members and threats against social leaders and communities, it is extremely difficult to obtain verified coherent information. Both conceptualisation and information about these groups are lacking. The ICRC has called for further detailed analysis in relation to the Colombian ongoing armed conflicts. While it may benefit victims, the triggering of IHL could also justify the use of deadly force, which in the muddled conflict context of Colombia is likely to affect civilians. The military, for example, bombed a FARC-EP dissident camp in August 2018 in Caquetá. It was later revealed that at least 8 children were killed during the operation.

Protracted violence in post-conflict Colombia

The year of 2019 saw a general upswing of deaths, threats, and forced displacement in many parts of Colombia. An important explanation to this upswing seems to be precisely this aforementioned reorganisation of armed groups after the adoption of the peace agreement. Between 2016 and 2018, FARC-EP dissidents, armed groups originating from old paramilitary structures, and others, organised themselves to occupy the territories the FARC-EP had left behind during the initial phase of the peace agreement. By 2019, the reorganised groups had already established some territorial control, beginning to actually expand it. In many rural areas in Colombia, the conflict over lucrative drug territories is thus once again eminent. New members are sometimes recruited under threats and sometimes because the implementation of the peace agreement is faltering in parts; many feels like the economic situation is not viable.

The increased violence, in this sense, also relates to the mounting of many peace-projects with the aim to integrate ex-FARC-EP members into society, substitute coca-cultivation, and many other initiatives promoting social and environmentally sound reforms. Armed groups, in particular, target community leaders, including leaders among the ex-FARC-EP members who have followed the reincorporation track. Apart from the coca substitution projects, the violence also often coincides with the activities of multinational as well as national companies extracting natural resources. Armed violence in relation to such activities has been ongoing during many decades and is furthermore nothing unique to the Colombian conflict.

The lack of conceptualisation and information about the armed groups and their activities (including recruitment and threats), together with the absence of economic opportunities and comprehensive well-funded State apparatus in rural parts of Colombia as well as corruption and low wages among State employees make up part of the continuing vicious circle of violent conflict in Colombia.

Armed conflicts?

While the armed group FARC-EP was recognised as a non-state armed groups that fulfilled the criteria under IHL, it is not obvious whether other active groups fulfil the ‘organisation requirement’, due to their scattered organisations, lack of discipline, coordination and collective and open character, as well as their incapacity to respect IHL. However, it is depressing to note that the armed violence is just as bad – if not worse in some areas – as during the years before the peace agreement with FARC in terms of victims. On that basis, it would be counterproductive to deny the existence of multiple ongoing conflicts in Colombia. Those affected by the ongoing violence, such as the numerous children recruited and used by armed groups, need to be recognised by the State as victims within the context of armed conflict. Without victims a reconciliation, and reintegration at the centre of state responses to armed groups, peace efforts are doomed to fail completely in Colombia.

CfP: The Rule of Law from Below: Individuals and Civil Society as Protectors of the Rule of Law in Troubled Times

January 31, 2020

On 29 October 2020, Utrecht University’s Montaigne Centre for the Rule of Law and Administration of Justice, together with the Netherlands Institute of Human Rights (SIM), will host a conference that shifts the focus to the role of individuals and civil society in responding to threats to the rule of law. The purpose of the conference is to investigate the different ways in which individuals can be protectors and defenders of the rule of law, and also explore whether attention to this perspective may influence how the rule of law is defined and understood by States and other international actors. A follow-up session will be held in the morning of 30 October to brainstorm potential new publications or research projects. The conference will have four themes (see below):

The role of the civil society and civic space supporting the rule of law.
Collective citizens’ activities face pressure globally, whether it is demonstrations by social movements in the streets or the work of non-governmental organisations: civic space is under pressure. By holding authorities to account, uncovering corruption, claiming social justice and litigating in courts, civil society plays a crucial role in upholding the rule of law. It is clear that the rule of law should protect such work, but how does it work the other way around? What effects do the activities of civil society, organised or not, have on the rule of law? Which particular features of the rule of law are strengthened by civil society and in which ways?

The role of religious/traditional groups in promoting the values underlying the rule of law. While the State is at the centre of public international law and the primary duty bearer in human rights, private actors have long been implicated by and dedicated to their underlying values. Human rights in fact notes its origins in the many religions and philosophies of the world. Given contemporary factors including globalisation, privatisation, and the rise of religiosity, private actors are increasingly important in today’s society, and the role of the State is both changing and diminishing. What role can and should private actors, like religious groups and community collectives, play in promoting the rule of law and human rights? How does this impact upon the role and function of the State, and upon the international legal framework?

The role of civilians and community leaders in protecting the rule of law in armed conflict. In recent and ongoing non-international armed conflicts, civilian communities have played active roles in securing their own protection by, for example, organising governance initiatives in areas where the de jure government is absent, negotiating with armed actors and forming committees and structures to assist civilians in need e.g. white helmets. To what extent does the international humanitarian law or human rights law framework address civilian volunteerism in non-international armed conflicts? To what extent do civilians living outside the control of the de jure government remain subject to the rule of law – and how should that rule of law be understood and measured? What are the risks for local entities taking on the role of protectors of the rule of law and should third States support these initiatives?

The role of civil society in documenting serious human rights violations and protecting the rule of law through ensuring accountability. From interviewing and advocating for survivors to leading forensic exhumations to building criminal case files against specific individuals, civil society is often at the forefront of accountability efforts, protecting, defending, and leveraging the rule of law. Recently, new technology and new networks of support have propelled these efforts in unprecedented ways. In what ways has technology changed the work of civil society in bringing about accountability? How are civil society actors engaging in new ways with institutions involved with accountability? What are the risks associated civil society actors playing a greater role in criminal investigations and filling in spaces previously occupied only by states or international bodies?

See here the call for papers.

Looking back at 2019: Highlights from the blog

January 28, 2020

2019 was a busy year on the Armed Groups and International Law blog, with the most guest posts ever from academics all over the world. We welcomed Ezequiel Heffes to the blog as an editor and Sam Jackson carried on his excellent work as news editor.

We started the year by publishing our traditional legal roundup which is a compilation of literature on topics relevant to non-international armed conflict, covering articles on issues such as the relationship between IHL and IHRL, jus ad bellum, sources of law, ICL, detention and targeting and weapons and foreign fighters. We are currently in the process of compiling a new roundup with literature from 2019, so please feel free to email us with articles, books, chapters and reports that you think should be included. For previous legal roundups, see here.

During the course of the year, we had some excellent and important posts. Ezequiel Heffes examined the problem of engaging armed groups on issues relating to healthcare, analysing the different ways in which armed groups can be engaged on this issue. In a prescient post, Alessandra Spadaro from the Geneva Academy reflected on the difficult situation relating to the detainees held by the SDF in Syria, reviewing the different possible options and showing them all to be problematic. This is a topic that was also addressed by Nicolas Sion and Anki Sjoberg from the new NGO Fight for Humanity whose post provided ten recommendations for the international community in relation to these detainees.

In March 2019, Frederic Mégret engaged in a probing enquiry into the source of the authority to engage in hostilities and to kill or wound without risking being prosecuted for it. Seeking to identify the sources for these prerogatives in IAC, Mégret opened a thought-provoking discussion of when and whether these sources might also be applied to armed groups.

In May, Luke Moffett from Queen’s University Belfast shared some fascinating preliminary findings of his new UK Arts and Humanities Research Council ‘Reparations, Responsibility and Victimhood in Transitional Societies’ project. The project explores how non-state armed groups contribute to reparations by exploring seven contexts and engaging with 18 groups.

Read more…