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The legal regime protecting persons living in territory under the control of non-State armed groups

May 19, 2020
An ICRC delegate talks to a member of an armed group

Concomitant to the many contemporary non-international armed conflicts and the multiplication of non-State armed groups, a significant number of armed groups exercise de facto control over territory and persons living therein. Such control may take various forms. In some contexts, armed groups exercise military control over territory while State organs continue to be present and provide certain services – such as health care, education, or public welfare. In other contexts, non-State armed groups exercise de facto control over territory and State forces or organs are no longer present. In these situations, and in particular if territorial control is prolonged, some non-State armed groups may develop State-like capacities and provide services for the population.

For civilian populations, living under the de facto control of a non-State armed group can exacerbate pre-existing needs and vulnerabilities, create new ones, or – in other instances – provide a degree of stability in conflict-ravaged environments. Regardless of whether civilians live under the control of a State or non-State party to a conflict, their essential concerns remain the same: they need security, work and livelihoods, respect for their basic rights, and education for their children.

Unlike in international armed conflict, there is no law of occupation for non-international armed conflict, meaning there are no IHL rules explicitly designed to regulate the relationship between non-State armed groups and persons living under their control. This could give the impression that international law leaves non-State armed groups unrestrained in these situations; however, IHL does, in fact, provide essential humanitarian rules protecting civilians in armed conflicts. Beyond these rules, there is debate about the applicability of human rights law to non-State armed groups.

The applicability of IHL in territory under the de facto control of armed groups

When non-State parties to armed conflicts control territory over an extended period of time, IHL continues to apply and provide protection to civilians.

IHL applies for the entire duration of a conflict. In protracted conflicts, hostilities may stall or freeze for certain periods without a peaceful settlement being reached by the parties. As was discussed in the ICRC’s 2015 report on IHL and the challenges of contemporary armed conflicts (Challenges Report), various views exist on the applicability of IHL in these situations. In the ICRC’s view, non-international armed conflicts end when hostilities cease and there is no real risk of their resumption, which is rarely the case when control over territory remains contested among belligerents (see ICRC, Challenges Report 2015, p.10; and ICRC, Commentary on GCI, paras 483–502).

For as long as IHL applies, its rules, which contain fundamental humanitarian protections, apply to the treatment by non-State armed groups of persons living under their control. Within territory controlled by a State or non-State party to a conflict, parties to the conflict are bound by IHL in connection with all acts having a “nexus” or link to the armed conflict. The nexus requirement has been understood to mean that an act must be “shaped by or dependent upon the environment – the armed conflict – in which it is committed” – in other words, that the armed conflict played an essential role in a person’s ability, decision, and objective to engage in certain conduct (see ICTY, Kunarac et al Appeals Judgment, para. 58; and ICRC, Commentary on GCI, para 460). The nexus requirement ensures that the relationship between the State and the population, or between members of the population, continues to be regulated only by its obligations under human rights law, unless an act has a nexus to the conflict. It has been argued that in territory under the de facto control of a non-State party to a non-international armed conflict, only acts with a narrow link to the conflict would have such a nexus: thus, acts of the non-State armed groups that aim primarily to maintain law and order among the civilian population, or the provision of essential services, would fall outside the scope of IHL, and would be governed by other bodies of law, including human rights law. The other view, submitted here, is that the way in which non-State armed groups exercise control over, and interact with, persons living in territory under their de facto control is inherently linked to the conflict in question. The armed conflict plays a substantial part in the group’s ability to control the lives of those living under its control and the manner in which such control is exercised. As a result, IHL applies and therefore protects persons living in territory under the de facto control of non-State armed groups.

Protective rules provided by international law and their limitations

IHL provides fundamental and non-derogable protection for those affected by conflict. It protects the lives and dignity of civilians and addresses their acute humanitarian needs.

IHL obliges non-State armed groups to treat civilians living under their control humanely and without any adverse distinction. It prohibits all acts of violence against life and person; it prohibits pillage; and it requires parties to conflict to respect the convictions and religious practices of civilians under their control and to take special care not to damage or destroy cultural property. IHL defines a legal protection framework for persons deprived of their liberty and prohibits the passing of sentences without a fair trial; it provides rules protecting displaced persons; it establishes a framework regulating humanitarian assistance for the civilian population; it requires parties to conflict to collect, protect and care for the wounded and sick; and, as indicated above, Additional Protocol II protects the continuous education of children.

IHL applicable in non-international armed conflict does not, however, contain rules addressing issues such as the provision of public order and safety, the possible collection of taxes, or the adoption of laws regulating life in such territory. In contrast, rules addressing such issues exist for situations of occupation in international armed conflict (see Arts. 43, 48, and 49, The Hague Regulations of 1907; see also Art. 64, Fourth Geneva Convention). IHL applicable in non-international armed conflict tends to be less elaborate, or silent, on the protection of certain other rights, in particular the political, economic, social, and cultural rights of the population. Issues pertaining to the relationship between citizens and authorities are primarily the purview of human rights law. Ensuring continued protection of the human rights of persons living in territory under the de facto control of armed groups is, however, challenging as a matter of law and practice.

First, unlike IHL, human rights treaties bind only States. In the view of committees of human rights experts and of courts, States have an obligation to take steps to protect – to the extent possible – the rights of persons living in their territory but under the de facto control of a non-State armed group. And second, it is a matter of controversy whether human rights law also binds non-State actors. In a number of instances, States – notably though resolutions adopted in UN organs such as the Security Council, the General Assembly, or the Human Rights Council – have called on non-State armed groups that exercise de facto control over territory to comply with human rights law in addition to respecting their IHL obligations. In the absence of relevant treaty law and owing to limited State practice, however, the applicability of human rights law to non-State armed groups is an issue that remains unsettled. Essential questions remain unanswered, such as the source, scope, and limitation of non-State armed groups’ potential human rights obligations, and the relationship between these potential obligations and those of the territorial State. Moreover, while non-State armed groups are, clearly, able to refrain from violating basic human rights, many will not have sufficient capacity to comply with the more sophisticated obligations deriving from human rights law, in particular obligations to take positive measures to protect and fulfil human rights.

To overcome these legal challenges and engage in protection-related dialogue with all parties to armed conflict, the ICRC takes a pragmatic approach and operates on the premise that “human rights responsibilities may be recognized de facto” if a non-State armed group exercises stable control over territory and is able to act like a State authority (see also ICRC, Challenges Report 2011, pp. 14–15.[1] It is difficult to conclude that all non-State armed groups have human rights obligations as a matter of law; however, this approach recognizes that the needs of the civilian population living under the de facto control of a non-State armed group may warrant the engagement of humanitarian and human rights organizations with such groups on a broader scope of issues than those tackled by IHL applicable in non-international armed conflict. This is particularly important in protracted conflicts.


[1] ICRC, IHL Challenges Report 2011, pp. 14–15.

Symposium on the Legal Regime Protecting Persons Living Under the Control of Non-State Armed Groups

May 19, 2020

There are currently some 100 armed conflicts around the world, most of which are non-international in nature, involving one or more non-State armed groups (NSAG). In the course of such conflicts, armed groups frequently gain control over territory and the populations living therein. At times NSAG control is short-lived; at other times it may be prolonged. A common feature is that persons living under the control of armed groups are not able to rely on the State as the entity responsible for protecting the totality of their rights and dignity – they become de facto subject to the power of a NSAG. The more protracted the situation becomes, the more varied and acute the needs of the civilian population may be.

In the context of the COVID-19 pandemic, persons affected by threats arising from armed conflict and the global health crisis face serious risks. To protect their lives and dignity, the need to provide medical care for the sick and to ensure that a population’s basic needs are otherwise met have become especially important. In addition, certain preventive measures are frequently taken to curb the spread of the pandemic, such as lockdown or quarantine rules. While COVID-19 related measures implemented by States dominate the news, non-State armed groups have also taken a range of steps to curb the pandemic and address associated needs. However, the international legal framework under which armed groups take such measures is less developed than that in which States operate, which risks leaving populations in a troubling situation.

Pursuant to its mission to protect the lives and dignity of persons affected by armed conflict and other situations of violence, in 2019 the ICRC interacted with over 400 armed groups throughout the world. The organization endeavors to ensure that populations under the control of NSAGs are treated with respect for the fundamental guarantees of IHL, and other bodies of law as applicable, and that their safety and dignity are protected. In its latest Report on International Humanitarian Law and the Challenges of Contemporary Armed Conflict, the ICRC set out its reflections on the legal regime protection persons living under the control of non-State armed groups.

In this blog symposium, several experts discuss the ICRC’s position or use it as a starting point to explore related subjects.

Ceasefire in the Time of COVID-19: An opportunity for peace?

May 8, 2020

Following the ceasefire appeal launched by UN Secretary-General Antonio Guterres on 23 March 2020, a number of armed opposition actors reacted positively and declared temporary ceasefires.

There is an interesting online event next week moderated by Fight for Humanity in which several conflicting parties that have answered the call for ceasefires will be invited to personally express themselves on the issue, on what could be done to cease this opportunity for peace, as well as to explain their own responses to the COVID-19 crisis. The debate will involve representatives from the National Democratic Front of the Philippines the Syrian Democratic Forces (Syria) the Southern Transitional Council (Yemen) the National Liberation Army (Colombia).

Here is the flyer and info:-

Panelists Representatives from: the National Democratic Front of the Philippines the Syrian Democratic Forces (Syria) the Southern Transitional Council (Yemen) the National Liberation Army (Colombia) With the participation of: the United Nations Mediation Support Unit the International Committee of the Red Cross

Moderation: Fight for Humanity

Language: English

Event registration Registration is mandatory. Once you have registered you will receive an email with instructions on how to join the event on 14 May. You will first access the event waiting room and then the moderator will allow you to join the event at 15:00 CEST. >> Register for the event

Asking questions to the panelists Please send your questions in advance to info@fightforhumanity.org. During the event, please send your questions to the moderator by chat. There will be no direct webcam or microphone interactions between participants and panelists during the event.

Outsourcing Justice: State Obligations and the Prosecution of Foreign Fighters by Armed Groups in Syria

April 6, 2020

Hannes is a DPhil candidate in the field of public international law at the University of Oxford, supervised by Professor Dapo Akande. His research focuses on penal proceedings conducted by non-state armed groups and is supported by the Arts and Humanities Reserach Council (AHRC). Hannes holds law degrees from the University of Graz and University College London (UCL) where he was awarded the Georg Schwarzenberger Prize in International Law by the Institute of Advanced Legal Studies (University of London). He is also a research and project assistant at the Oxford Institute for Ethics, Law and Armed Conflict (ELAC). Before coming to Oxford, Hannes worked as a legal advisor on human rights, constitutional law and judicial affairs in the Austrian Parliament. He has also clerked at the Israeli Supreme Court in Jerusalem and was an intern at the United Nations Offices in Vienna and Geneva.

Several weeks ago, the Kurdish-dominated Autonomous Administration of North and East Syria (NES or Rojava) has announced that it will hold trials for Islamic State fighters from more than 50 States – including the UK, The Netherlands and France – after repeated calls for repatriation by their home countries had failed. Whereas the question of non-repatriation (and the related practice of stripping individuals of their nationality for this matter) raises several human rights law problems, including under Article 12(4) ICCPR, this post will focus on identifying some possible consequences of the failure of States to prosecute their nationals and have them tried by an armed group. In particular, it considers whether a State’s obligation to prosecute perpetrators of war crimes and terrorist offences can be discharged by the NES and if so, whether such a trial could trigger the human rights obligations of the defendants’ home State under the ECHR and ICCPR. 

Non-Repatriation and the Obligation to Prosecute War Crimes

Several European officials, including the French Foreign Minister, have stated on record that they want foreign fighters to be tried locally (that is, in those areas where they are currently detained) not only by the Kurdish authorities, but also by the Syrian Democratic Forces (SDF). This ‘outsourcing of justice’ to an armed group is not only politically questionable but also legally problematic. From an IHL perspective, customary law requires States to investigate and prosecute war crimes committed by their nationals, irrespective of whether they are committed in international or non-international armed conflicts. This duty is further enhanced by the international legal framework on global terrorism established by SC Resolutions 2396 and 1373 which obliges States to ensure that perpetrators of terrorist acts are ‘brought to justice’ and to implement ‘prosecution strategies’ in accordance with international law (see also this post by F. Capone). Whereas States can discharge these obligations by extraditing nationals to third States, it is unlikely that having foreign fighters tried by armed groups is a valid alternative (The GCs, for example, only accept extradition to ‘other High Contracting Parties’, see Arts 49 GC/I, GC/II, 129 GC/III and 146 GC/IV). In addition, even if a trial is undertaken by a third party, IHL makes clear that the requirement to prosecute war criminals cannot be used to deprive the accused of their right to a fair trial (e.g. Arts 49 GC/I, GC/II, 129 GC/III and 146 GC/IV provide that ‘in all circumstances, the accused persons shall benefit by safeguards of proper trial and defence’). This concern applies to the ongoing denial of fair trials by Iraqi State authorities in charge of trying Islamic State fighters, as well as trials by armed groups in general.

Judicial Guarantees and Courts of Non-State Armed Groups

In recent years, commentators have convincingly demonstrated that while armed groups are not generally precluded from setting up their own courts under IHL and IHRL (provided the latter applies to them), in practice they often fail to provide the necessary fair trial guarantees (in particular those enshrined in CA3(d), Art. 6 AP/II, and Art. 75 AP/I and their customary law equivalents). On the surface, the NES court system seems highly sophisticated for an armed group operating in a conflict area. The NES has a constitution and a legal system that notably features a ban on the death penalty and on extradition to death penalty countries like Iraq, as well as the inclusion of female judges and creative restorative justice (consider e.g. this post by Matthew Krause). However, reports have raised doubts as to whether the Rojava courts are sufficiently independent and impartial and criticised the lack of sufficiently trained lawyers and prosecutors. This post will not make any assessment on whether these trials are indeed inadequate under IHL and IHRL. Instead, it will focus on the consequences that follow if they are. In particular, potential human rights obligations incumbent on the home States of these foreign fighters, notably the right to a fair trial under Article 6 ECHR and Article 14 ICCPR, will be analysed.

Generally speaking, a State’s obligation to secure the human rights of individuals within its jurisdiction includes a due diligence obligation to prevent the commission of human rights violations by armed groups. It appears that the European States concerned would have the power to repatriate and try their nationals in accordance with international law (as shown above, international law might even require them to do so). The important question, however, is whether European foreign fighters detained in Syria fall under the jurisdiction of their respective home State for the purpose of Article 1 ECHR. Since these States do not exercise territorial control (an accepted link for the trigger of jurisdiction under the Convention, see Loizidou v Turkey), the only option left would be to resort to a ‘personal model’ of jurisdiction developed by the ECtHR in Al-Skeini(in partial rejection of its own findings in Bankovic). However, this modelallows for jurisdiction under Article 1 ECHR only if state agents exercise some form of ‘physical control’ while the State also exercises some ‘public powers’ in the territory in question. The French Human Rights Commission (CNCDH) has taken the position that French foreign fighters detained in Northern Syria are under France’s jurisdiction for the purpose of Article 1 of the ECHR because the fact that they have been  prevented from returning to France is the consequence of a deliberate decision by the French authorities and not of the Kurdish forces. In addition, the Commission has emphasised the close relationship between France and the SDF due to the military and diplomatic partnership against the Islamic State. However, this approach is unlikely to satisfy the Al-Skeini criteria outlined above and amounts to the argument that a State must be considered as having jurisdiction over an individual whenever it has any control over the fate of that individual (See also Antonios Tzanakopoulos’ post here). Whereas this concept is normatively appealing, it is unlikely to trigger jurisdiction under the ECtHRs current jurisprudence.

Jurisdiction under the ICCPR

If the ECtHR confirms its restrictive position on the scope of the ECHR’s extraterritorial jurisdiction, recourse could be made to other IHRL regimes, in particular to the ICCPR and its Optional Protocol, to which many of the home States are also bound. The UN Human Rights Committee (HRC) has interpreted Article 2 ICCPR as requiring States to ‘secure the rights under the Covenant for all persons in their territory and all persons under their control’ (General Comment No. 31, para 12). In defining ‘control’, the HRC has taken a broader view than the ECtHR and has recognized the extraterritorial reach of the Covenant over nationals abroad where a State party has control ‘over the facts and events giving rise to human rights violations’ (e.g. Sophie Vidal Martins v Uruguay, paras 7-9). In a more recent case (Mohammad Munaf v. Romania, para 14.2), the HRC found that ‘a State party may be responsible for extra-territorial violations of the Covenant, if it is a link in the causal chain that would make possible violations in another jurisdiction’. Applying this reasoning would allow foreign fighters to come under the jurisdiction of the ICCPR as their (potentially flawed) trial by the NES is the direct consequence of their home State’s refusal to repatriate and try them. It is also worth mentioning that in the context of the right to food, water or health, the Committee on Economic, Social and Cultural Rights (CESCR) has held that States have to give due attention to these rights when they broker international agreements (General Comment No. 12, para 36; General Comment No. 14, para 39; General Comment No. 15, para 35). It appears that France has entered into agreements with the NES regarding the detention and potential trial of French nationals and it is plausible to argue that this principle also applies to civil and political rights and agreements concluded with armed groups. However, even if resort to the HRC might be more promising from a jurisdictional point of view, its recommendations (‘Views’) remain non-binding and domestic political backlash might prevent States from implementing them.

Derogation?

Even if jurisdiction is triggered under the respective treaty, it has to be noted that both Art. 6 ECHR and Art. 14 ICCPR are subject to derogation regimes (Art. 15 ECHR, Art. 4 ICCPR). It is still disputed whether extraterritorial derogation is permitted but it can be argued that upholding the right to a fair trial requires the repatriation of terrorist fighters which in turn poses a threat to their home State’s national security. However, the HRC has described the requirement of a competent, independent and impartial court enshrined in Article 14(1) as an ‘absolute right that is not subject to derogations’ (General Comment No. 32, para 19). In addition, any derogation must be consistent with a State’s other obligations under international law, which include the fair trial obligations under IHL which are largely coterminous with Article 14 ICCPR (See Art 6 AP/II and Customary Law), most notably the requirement of an independent and impartial court. In addition, there is growing authority to suggest that fundamental principles of fair trial today form part of jus cogens (General Comment No. 29, para 11; Kadi v Council and Commission, para 290; ILC report on peremptory norms of general international law, para 123). Therefore, irrespective of whether the preconditions for derogation are met, it is unlikely that the affected States could escape their (positive) obligations under the right to a fair trial.

State Complicity in Armed Groups’ Trials

If jurisdiction under the ECHR or ICCPR cannot be established, State complicity in the internationally wrongful act of the armed group (that is, the passing of sentences without a regularly constituted court affording all the necessary judicial guarantees under IHL and the violation of fair trial rights under IHRL, if the latter applies to the group) could be invoked as a fall-back position to invoking the breach of a primary rule of these Conventions by the respective State. Under Article 16 of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) a State which aids or assists another State in the commission of an internationally wrongful act is internationally responsible. It has been argued that a similar rule for the complicity of States in wrongful acts of non-State actors is currently developing. When armed groups become the bearer of international obligations, a State’s responsibility for participating in the violation of those obligations in terms of complicity could be invoked. Indeed, in the context of genocide the ICJ did not hesitate to apply the principles of Article 16 to armed groups by analogy (See Bosnia Genocide case, para 420). However, even if State complicity for acts of an armed group were to be accepted and invoked, victims would still lack a proper forum to bring a related claim (but consider the suggestions made here).

Conclusions

In conclusion, there exists a strong legal case against the outsourcing of criminal proceedings to armed groups and for the repatriation and prosecution of foreign fighters by their home States. These States are under a legal obligation to prosecute their nationals for war crimes and terrorist acts, to implement positive obligations with regard to their citizens’ rights under the ICCPR and (potentially) ECHR, and might be held complicit in fair trial violations of the NES and other armed groups. However, due to the restricted extraterritorial jurisdiction of the ECHR in cases that do not involve territorial or physical control by the States in question, individuals subjected to armed group courts will struggle to find an appropriate legal forum to enforce these obligations and secure their rights under the Convention.

Podcast recommendations – legal, non legal and pure escape

April 5, 2020

As an academic, I’m often the one imparting information in the form of lectures and curating discussions among students. Podcasts give me the joy of switching roles and becoming the audience: listening to other people drawing out discussions and opinions, hearing stories unfurl and learning about lives on the other side of the world.

In this post, I’m sharing some podcast recommendations in the hope that they are helpful for people stuck at home in these strange days. When I was putting together this list, I hesitated. Should I only give recommendations on armed groups and international law, non-international armed conflicts, global politics and humanitarian affairs? Or should I also give some non-legal recommendations? In view of the extraordinary times, I have included personal podcast recommendations because I think that compelling story-telling may be just what is needed. Please feel free to send in more recommendations or put them in the comments boxes! Thanks to all the people who sent in recommendations via the Armed Groups and International Law twitter feed @armedgroupsintlaw.

NB: I listen to podcasts on an app called ‘Podcast Addict’ but you can find most of the ones that I list below on Spotify and Apple Podcast.

Starting with international law:-

Asymmetrical Haircuts – This is a wonderful podcast for people interested in the cases before the courts in The Hague. In each episode, the hosts Janet Anderson and Stephanie van den Berg ask interviewees to discuss the context and complexities of cases seeking justice for international crimes at international and national level. Check out this episode where Lisa Clifford explores the story of Germain Katanga’s return to the DRC after serving his sentence in The Hague.

Better Human – In this podcast, Adam Wagner explores some of the big human rights debates in a way that makes them accessible to non-lawyers. He conducts fascinating interviews with guests such as Philippe Sands, Susie Alegre and Aiofe Nolan. I particularly enjoyed this episode where Jonathan Cooper OBE discusses the landmark cases on LGBT+ rights in the UK and Europe.

Declarations – This is a human rights podcast run by the Centre of Human Rights and Governance at Cambridge University. It covers a range of human rights topics. Have a listen to this episode on Amnesty’s investigation into the coalition’s military campaign in Raqqa.

EJIL:the Podcast – The aim of this brand new podcast is to provide a forum for in-depth, expert but accessible discussion of international law issues in contemporary international and national affairs. It is hosted by Sarah Nouwen, Philippa Webb, Dapo Akande and Marko Milanovic.

EJIL: Live!I haven’t figured out how to get this fantastic series onto the platform where I listen to podcasts, but you can find these great audio files and video interviews on the EJIL:Talk website. The interviews include conversations with scholars, commentary on cases and in-depth examination of legal developments.

Intercross podcast – This Washington D.C. based ICRC podcast is a must-listen for people interested in humanitarian affairs. It provides a platform for conversations about IHL, protection of civilians and situations of crisis around the world. Listen to this episode where Polvina Levina discusses protecting cultural property in Syria with guest host Ellen Policinski.

Jus Cogens – There are only five episodes of this podcast from Leiden University law school but they are well worth a listen. I particularly liked the episodes with Helen Duffy on strategic litigation (see here and here).

Justice Visions – This podcast which is hosted by Ghent University is linked to the Justice Visions research project run by Tine Destrooper. Every month, the researchers connected to this project talk to experts and practitioners about cutting-edge research and practice regarding victim participation in transitional justice.

LawPod – LawPod is a weekly podcast, based in the Law School at Queen’s University Belfast, that provides a platform to explore law and legal research in an engaging and scholarly way.  If you haven’t listened to it yet, here is the link to the conversation that Luke Moffett and I had in November about armed groups and international law.

More Perfect – Another great series from RadioLab about the US Supreme Court. I found this episode about the death penalty fascinating. It takes a detailed look at what constitutes ‘cruel and unusual’ in the 8th Amendment of the US Constitution.

Oxford University Public International Law Discussion Group – a series of podcasts presenting lectures on international law by scholars, practitioners and judges of national and international courts.

RightsCast – RightsCast brings provides discussion on a wide range of contemporary and enduring human rights issues from the University of Essex Human Rights Centre. I haven’t listened to them all, but there are some great ones here. Check out this episode where Daragh Murray is joined by Francoise Hampson and Charles Garraway to discuss how human rights investigations are conducted, particularly within the framework of UN mandated fact-finding missions. 

Non-law, but relevant to non-international armed conflicts:

Caliphate, with Rukmini Callimachi – This fascinating series on the Islamic State was published by the New York Times in 2018. It follows the story of one young Canadian jihadi, Huzaifi, who was recruited into the group, and ended up committing acts of terror in Iraq. It weaves togther interviews with Huzaifi, with interviews with Yazidi victims – and allows the reader to accompany Callimachi as she realises that Hazaifi’s repentence is not to be trusted.

Conflicted – this podcast is unlike anything I’ve ever listened to before. It is a far-ranging conversation about the Middle East, with specific episodes devoted the conflicts in Syria, Iraq and Yemen. The conversation is between ex-Al-Qaida member turned MI6 spy, Aimen Dean with Thomas Small, ex monk turn Islamic Studies scholar.

The Other Latif – This podcast is made by Radiolab reporter Latif Nasser. Latif Nasser had always believed his name was uniquely his own, until he discovered that he shares his name with another man: Detainee 244 at Guantanamo Bay. This podcast follows Radiolab’s Latif into a years-long investigation, trying to uncover what ‘the other Latif’ actually did or didn’t do.

Off the Page – Off the Page is a podcast by International Security, a quarterly journal edited and sponsored by the Belfer Center for Science and International Affairs at the Harvard Kennedy School, and published by the MIT Press. Check out this episode on how and when international criminal tribunals deter wartime atrocities.

Trend Lines – This podcast from the World Politics Review gets my thumbs-up for its mission to cover the smaller stories that often don’t make the front pages. It combines in-depth interviews/ reports, with briefings on situations around the world.

War and Peace – I haven’t listened to this one yet, but it was sent in via the Armed Groups and International Law twitter thread asking for podcast recommendations and it looks good. It is a new podcast from the International Crisis Group in which experts are interviewed about all things in Europe and its neighbourhood, including Russia.

Non law:

Catch and Kill Podcast – Made by Pulitzer Prize winning journalist Ronan Farrow, this podcast tells the story of investigative reporting that led to the investigation of Harvey Weinstein. The podcast has interviews with many of the people involved in the investigation, from brave whistleblowers to undercover operatives.

Fake Heiress – I didn’t pay much attention when the story of Anna Sorokin – a Russian born fake heiress living it up in New York – hit the newspapers last year, but this podcast tells the incredible story of how she got away with swindling acquaintances, hotels and banks out of nearly 300, 000 dollars.

My Mother’s Murder – This podcast tells the story of an investigation into the assassination of Maltese investigative journalist and anti-corruption activist Daphne Caruana Galizia in 2017. The story is all the more poignant as it is told by the late journalist’s own son, Paul Caruana Galizia

Revisionist History – In this podcast, Malcolm Gladwell goes back and reinterprets something from the past: an event, a person, an idea. Something overlooked. Something misunderstood.

Rough Translation – Produced by NPR, this podcast has been going for a couple of years now. It’s an ultimate story telling podcast, exploring issues and stories through the lives of real people all over the world. I haven’t listened to all the episodes, but my favourites are: The Congo We Listen To (about rape allegations in the DRC), DIY Mosul (about body collectors in Mosul, which prompted me to write this blog post) and The Search Part I and II (about a journalist who is missing in Iraq).

S-town – I think this remains my all-time favourite podcast. It follows a real-life investigation into a murder in the town of Woodstock Alabama. During the making of the podcast, the journalist Brian Reed talks to a vivid cast of characters in Woodstock, including John B. McLemore – a character you’ll never forget, who shockingly commits suicide in episode two. Deeply misanthropic and unceasingly critical of the town’s residents, John is also a surprisingly sympathetic character with deep anxieties about climate change, a love of clocks and an ongoing struggle with depression.

Serial – This is another great podcast from the makers of This American Life, who also made S-Town (above). Season One (which I liked the best) investigates the murder of Hae Min Lee in 1999. Season Two follows the story of Sergeant Bowe Bergdahl who was captured by the Taliban and then charged with desertion. Season Three follows the ordinary working of the criminal justice system in the US in Cleveland.

The Drop Out – This podcast tells the story of the investigation into Elizabeth Holmes and her company Theranos which fraudulently claimed to have developed revolutionary blood testing technology. The podcast shows how the elaborate, long-running fraud was finally uncovered, with interviews with whistle blowers and employees.

The Ratline – In this podcast (which has just come out as a book) Philippe Sands provides an account of the daily life of a senior Nazi and fugitive, and of his wife after the second World War, when he is being hunted by the Soviets, the Americans, the Poles and the British, as well as groups of Jews.

The Shrink Next Door – This is a dark and true story about a therapist in The Hamptons who traps his patients into complete dependency, to the extent that they turn over their financial affairs over to him and even let him live in their house. Believing that they are engaged in ‘therapy’, they provide him with services such as gardening and administrative assistance – all the while paying him an hourly rate.

What are YOU going to do with that? – This is a podcast with Danni Reches, a PhD candidate at the University of Haifa. Danni interviews young researchers and scholars to learn about their process, their success stories, obstacles and the way they overcame them. And everything is over a glass of Amaretto.

White Lies – In 1965, Rev. James Reeb was murdered in Selma, Alabama. Three men were tried and acquitted, but no one was ever held to account. This podcast is about two journalists from Alabama returning to the city where it happened fifty years later, to expose the lies that kept the murder from being solved.

Where Should We Begin? – This is a podcast made up of one-off marriage guidance sessions with couples in need of help. When someone first told me about the format of this podcast, I shuddered at the intrusion of privacy that I was sure that this must entail. I was convinced I would hate it. But after listening to the first episode, I got hooked. Gentle and wise, Esther Perel works wonders at coaxing people to share their problems and reconnect.

Edited on 7th April, to add My Mother’s Murder and What are You Going to do With That?. Updated on 20th April to add EJIL:the Podcast. Updated on 21st May, to add Justice Visions.

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.

Kleczkowska A. (2019) Searching for Armed Non-state Actors’ Role in the Process of Formation of Customary Law, International and Comparative Law Review, 19:2, 97-115

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.