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Book Symposium – Responsibility, Non-State Armed Groups and the Possible Development of a Legal Framework

October 8, 2020

Non-State armed groups (NSAGs) with different degrees of organization and control have been involved in numerous armed conflicts over the past 30 years, thus representing one of the main dramatis personae (the characters in the play) within the international scene. Not only do these entities use armed violence to achieve multiple goals, they also create institutions, form alliances, provide public goods, recruit individuals and, in doing so, shape the societies in which they operate (here, p. 2). This reality has led to an exponential interest by the international community on NSAGs’ behaviours, resulting in the proliferation of scholarly studies focusing on these actors from legal, political science and sociological perspectives (here, here, here and here). Different stakeholders have also acknowledged the influence that NSAGs exert beyond the academic realm. For instance, humanitarian non-governmental organizations (NGOs) and the United Nations, through its different bodies and agencies, have directly engaged with these entities to increase the protection of civilians in conflict settings, also assessing the lawfulness of their behaviours in numerous occasions.

While NSAGs’ importance is uncontroversial, their place and regulation in specific areas of international law remains unclear or insufficiently explored. One increasing concern in this regard has been their possible international responsibility. This is because (i) NSAGs may breach some of their international obligations and (ii) all existing international courts and tribunals with jurisdiction over international humanitarian law (IHL) only allow claims against States and individuals. Therefore, although NSAGs are expected to comply with certain rules – in particular those of IHL, their violation would not a priori entail any legal consequence for the group as a collective actor. In Towards a Regime of Responsibility of Armed Groups in International Law, Laura Ínigo Álvarez tackles this much contested matter. By following in the footsteps of others, such as Liesbeth Zegveld –but providing some new doctrinal and methodological insights–, Ínigo Álvarez rightfully notes that if these non-State actors have indeed international obligations, ‘it is only logical to ask if they also hold responsibility under international law’ (p. 3).

Considering that little attention has been paid to this issue in the last twenty years, as she correctly asserts, it is of a great merit for Ínigo Álvarez to address some of the challenges that this scenario might represent, offering a thorough analysis and proposing possible avenues of action. The book, which is based on her Ph.D. thesis, aims at clarifying ‘how international law could be better adapted to the reality of armed groups and their responsibility as collective entities’. In order to achieve this goal, the author asks how can and should international law develop a responsibility framework for armed groups for violations of IHL (p. 12).

Two advantages are identified to justify seeking clarification on this topic. First, ‘[a] responsibility regime that frames armed groups as collective entities increases the possibility of victims obtaining full reparations, thereby giving the rights of victims full acknowledgment’ (p. 5). Second, NSAGs’ responsibility ‘has the potential to create a culture of deterrence and compliance’ (p. 6). One could also add that individual criminal responsibility of these non-State entities’ members only ensures that a specific set of violations is punished, those considered to amount to international crimes, e.g. war crimes and crimes against humanity. As a result, ensuring that armed groups are responsible for IHL violations as collective entities could fill a gap confirming that there are consequences for violations that do not rise to the level of international crimes.

The book presents several important points, and it would be difficult to undertake an in-depth review of all of them given the inherent limitations that a blog post has. I will therefore take this opportunity to question the author about two specific legal and operational challenges.

Taking NSAGs’ Practice into Account: Silences and Sources

An important step undertaken by Ínigo Álvarez is the analysis of NSAGs’ perspectives on attribution and reparations in the form of what she calls ‘non-traditional’ sources (e.g. unilateral declarations, special agreements, codes of conduct and other internal rules). These documents, she correctly claims, ‘have been taken into consideration when discussing the primary obligations of armed groups’, and may also contain elements ‘that help clarify secondary rules’ for these entities (p. 92). This perspective is indeed relevant for a variety of reasons. For instance, there is an increasing sense that NSAGs’ compliance with international law is likely to improve if they are consulted about the development and implementation of the rules they are expected to abide (p. 2).

Ínigo Álvarez is nonetheless careful in this endeavour, observing that although this could indeed create a sense of ownership, the question ‘remains as to the legal value of such materials and the extent to which this practice can be used to define secondary rules’ (p. 92). Indeed, she explains that only the practice and opinio juris of States ‘should be given a primary role in the formation of customary international law’ (p. 99). Yet Ínigo Álvarez also adds that, as a minimum, ‘the practice of armed groups can be regarded as an interpretative tool aiding in the clarification and adjustment of primary and secondary norms applicable’ in NIACs (p. 101). In addition, according to her, this analysis is also pertinent as it may provide information with respect to the factual organisation of the actor in question.

Although I do agree about the relevance of assessing NSAGs’ practices with respect to international law – even when their value within this legal realm is disputed, the practical consequences that this would have when dealing with international responsibility would deserve further clarification. For instance, does the author envisage to use the commitments made by a group as a model for others? An alternative, in this sense, could be to take these as a basis for the development of some guidelines that international organizations could follow when attributing violations. In addition, in this specific case in which a clear set of rules has yet to be developed, the ‘non-practice’ (i.e. failure to act in a certain way) could also be a relevant factor to consider. Not including a type of reparation in several NSAGs’ agreements, for example, may suggest that these entities do not generally have the capacity (either knowledge or resources) or interest to actually adopt it.

Responsibility and Compliance with International Law: Looking for Some Correlations

As the examples included in the book show, some NSAGs have actually adopted measures to repair violations of international law, yet the reasons for such attitudes have not been fully considered. For Hyeran Jo, for instance, legitimacy-seeking groups are more likely to comply with international law than legitimacy-indifferent ones. Three possible indicators have been used to explain this: (i) the existence of a political wing within the NSAG; (ii) a secessionist aim with a clear governance objective in an autonomous region; and (iii) foreign support influencing the respect of humanitarian norms.

When dealing with the international responsibility of NSAGs and their practice on the topic, I would expect similar conclusions. Legitimacy-seeking groups will therefore adopt a broader range of measures than legitimacy-indifferent groups. For instance, a NSAG attempting to gain legitimacy from domestic stakeholders may be more willing to recognize that a violation of an international rule has been committed by one of its members, and adopt a measure of non-repetition vis-à-vis that same constituency. If a group has a secessionist aim, it may try to obtain support from international actors by recognizing and addressing its compliance problems. A key question in this regard would be before whom the legitimacy is actually sought and what implications this entails for the group in question. Non-State armed groups may adopt different measures according to the entity they are trying to gain support from, such as a State (or group of States), local communities, religious entities, and even other groups. Considering the important analysis that Ínigo Álvarez has undertaken, I would be curious to know if she has found some correlations between the practice of those groups that are open to engage on humanitarian norms and those that have both claimed responsibility for violations of IHL and implemented measures of reparations. 

Concluding Remarks

The lack of clarity regarding these and other issues related to the international responsibility of NSAGs reveals the importance of Ínigo Álvarez’s book, which serves to test the boundaries that the State-centric system of international law imposes over non-State actors. Towards a Regime of Responsibility of Armed Groups in International Law represents an important addition to the literature of NSAGs and it will be of significant value to both scholars and decision-makers, in particular for those entities in charge of looking for the accountability of these actors in conflict settings.

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