By Devaditya Chakravarti*
In recent months, a good swathe of armed combatants fighting against the supposedly oppressive Assad regime in Syria has matured itself into a fighting force increasingly able to challenge the state’s control of the country and to strike at strategic targets. This has coincided with it unifying under a single command of the Islamic State of Iraq and Syria (hereinafter ISIS) which has very understandably assumed the ability to mount co-ordinated military operations and as a result, has captured vast swathes of lands both in Syria and Iraq. There is credible evidence to suggest that the ISIS has managed to exist under a parallel economy altogether, what with them controlling key oilfields and exporting the produce to nearby countries, like Turkey and other countries in North Africa and the Near East along with having a broad extortion racket. This has positioned the ISIS as the biggest threat to Western states since 9/11, proving itself as a daunting challenge and bringing misery to those under its oppressive rule.
The situation caused by the ISIS has proven to be a great legal hurdle for leading academicians and international law experts with respect to use of armed force and devising an appropriate response to such groups. Also, the states fighting the ISIS both from inside the Middle East and from the West treat the ISIS as merely belligerents and are not particularly keen on recognizing them as Non-State Armed Groups, which will be highlighted in greater detail in subsequent paragraphs.
The present US-led coalition has increasingly recognized that military strokes alone may not win the day, but defeating ISIS would require something as fundamental as countering their ideology which could be more long-term and sustainable as opposed to retaliatory and offensive strikes. Thus, the role of non-governmental organizations becomes all the more relevant as part of the co-ordinated action on the part of the US-led coalition.
In today’s world, any engagement with Non State Armed Groups (hereinafter NSAG) have become contentious at best as states continue to assert themselves as the fundamental legal and political unit and thereby implicitly come to acknowledge that there are relatively fewer tools to pressure armed groups such as diplomatic pressure to legal and economic moratoriums and ultimately use of force
States have often argued that any engagement with the NSAGs will go on to confer legitimacy and hence, the apparent reluctance to support any initiative that directly engage NSAGs. Thus, one can be led to draw a bleak picture over the current ISIS problem, where the government is bogged down by the constant fear that legitimacy will lead to legal ramifications, and hence it has always sought to keep away any internal conflicts that arise out of the purview of the rules governing international conflicts. This is the case almost everywhere over the last quarter-century where states have shown the proclivity to brand dissenters as “terrorists” and have refused to talk with them.
It should be emphasized greatly that if the governments of the day are to continue like this, it could very well thwart ISIS and ISIS-like groups from engaging in international discourse and complying with humanitarian standards. It will be seen that with this inimical attitude of the state, no law can ensure any compliance.
I. Tracing the Roots: Belligerency as the Traditional Doctrine
If we are to look into history, this callous attitude of states has manifested itself throughout history and more recently, with the drafting of the Geneva Conventions. States have been till date, the sole arbiters as to whether the conflict ascends to the intensity of a “belligerency” or “non-international armed conflict.” Throughout history, states have always had the upper-hand in determining the rules of engagement in any conflict. Hence, international humanitarian law has been aimed mostly at state-actors.
Self-preservation has been the over-riding motive for states’ refusal to apply the rules of laws of war, because it would mean invariably, recognizing the insurgent group.
States are always on the lookout that any move at recognizing an insurgent group, would render them amputated as they could no longer use any means necessary to quell an uprising through the execution of domestic criminal laws. Seeing their options as being limited, states often feel that there is little to be gained by according recognition. Meanwhile, such a move would signal the sheer inability of the state to exercise effective control over its sovereign territory and the acknowledgement of a credible challenge to state authority, as any interaction between a state actor and an NSAG operative on its territory could be used by the NSAGs to further their political objectives. Now the media and the observant international fraternity would be led to view such a move as the state actor taking the side of the NSAG as a consequence of sympathy with its cause.
This callous attitude by the state, as has been remarked before, has led them to overlook any humanitarian benefits that recognition could usher in, including, among others, improved handling of the state’s armed forces at the hands of insurgents.
II. Character of an internal armed conflict
One of the most daunting challenges that international law is facing today would be that of it being caught in a time-warp. Despite the potential spillover effects that NSAG activities harbor, issues such as these are seen as domestic challenges. The international community has always characterized internal conflicts as matters of domestic security in which third-party states have no right to intervene. With the United Nations having enshrined this principle in its Charter and the Geneva Conventions having accepted it as well, there are limited avenues of thrusts in the form of mechanisms to push NSAGs to conform, whereas for state actors a comprehensive gamut of legal mechanisms have been forged guiding their observance. This dichotomy can be witnessed profoundly in the cases of child soldiers and anti-personnel landmines, where in almost all cases NSAGs are subject, yet are not donor, to international conventions. The window for states to criminalize such violations as may ensue, is very restrictive and has been shown to be ineffective because it is accepted wisdom that NSAGs fall back upon clandestine or guerilla tactics so as to counter state authority. Yet, it must be added that advocating NSAGs to comply with anti-personnel mine ban norm has been a largely successful strategy, as a result, efforts at sustaining and engaging NSAGs on weapons issues has produced encouraging and reckonable impact on people’s lives.
III. Current Legal Scheme
International humanitarian law provides only sparse protections at best, if a state chooses to acknowledge that an internal armed conflict exists. To equip the state with the capability to hold an NSAG liable for any violation, if not punish or prevent them, Common Article 3 of the Geneva Conventions, Protocol II relating to the Protection of Victims of Non-International Armed Conflicts, and more lately Article 8(2) of the Statute of the International Criminal Court (ICC) unambiguously pertain to NSAGs in the context of non-international armed conflicts. However, to draw out the major pitfalls, most members of armed groups are not considered combatants or prisoners of war (POWs), while the Statute returns the favour by failing to address the complex realities of internal conflicts. This is because, obligations are imposed only on states, whereas very few and simple provisions are provided for engaging NSAGs.
IV. Scope of Application
Certain parameters are to be met and requirements fulfilled before the legal arsenal of Common Article 3 and Protocol II are to be employed. However, the lack of a clear and unambiguous interpretation allow states to disregard International Humanitarian Law and interpret the laws of war in their favour.
Common Article 3
To attain the threshold level of “armed conflict”, no settled definition has been reached, so far yet, resulting in problems classifying a disturbance into a domestic hostility or an armed conflict. This frequent practice by states in recent years appears to be politically charged; justifying responses based on- at times unrestrained- force rather than dialogue. States fear, as has been mentioned before, that by accepting Common Article 3, a message would be sent out to the international community that a credible challenge has been posed to its ability to maintain order and that now, that the armed group has achieved an international “legal personality” it will forge a base to redress and voice its grievances.
International bodies, such as the UN Security Council, UN Commission on Human Rights and the International Court of Justice have prepared to risk embarking on determining as to whether an armed conflict exists under Common Article 3. However, as long as states do not concur with that decision, the critical flaw of the consent-based system comes out into the open as the states will claim that the criteria of the recognition process has not been met yet, and will strike down such a recommendation, unless it is in its own interest to apply it.
Additional Protocol II
Protocol II, because of its stringent requirements, generally is shown to have failed in its application. All the requirements are not met as the armed group is required to have sufficient command, control over territory, and ability to carry out sustained and concerted operations. With such isolation, the armed group may feel less compelled to comply with International Humanitarian Law (IHL) and human rights norms.
No Prisoner-of-War Status
In order to qualify for POW status, one must
- be a combatant or a person with equal status that has put down arms, and
- fall into the hands of the enemy.
In international armed conflicts, the captured are entitled to protection and are immune from liability for acts committed according to the laws of war after being accorded Prisoners-of-War (POWs) status. Members of resistance movements must be commanded by a responsible person, wear a distinctive emblem, carry arms openly, and respect the laws of war. Conformity to the Convention standards would be a failure as the nature of the rebel organizations and their tactics of “secrecy and surprise” would fail to make the grade.
There is little question but that the express intent of states is to relieve non-state fighters of POW status. Members of armed groups that are parties to internal conflicts are not entitled to the status in any circumstances. Upon interpreting the broad rules as provided in Common Article 3, one would see that it “shall not affect the legal status” of the armed group. Thus it can be construed without doubt, that there is no combatant status in non-international armed conflict, and hence any non-state fighter captured in an internal conflict would have his hands tied, this being a foregone conclusion, as he would not be entitled to POW status. To deny their armed group adversary combatant legitimacy, States have included the provision to preclude armed groups from claiming belligerent status and applicability of POW rules. Had international law transgressed to prescribe a legal status on belligerents, then states could no longer prosecute acts by them in consonance with their domestic laws. It is indeed, but a bit difficult to understand that members having not been accorded a POW status, would be immune from prosecution for acts committed during hostilities, even if they complied with the laws of war.
The Declining Significance of POW status
POWs are entitled to a host of protections, including combatant immunity. Those lacking POW status are virtually at the behest of the enemy. Such double standards by the states is reflective of their precise attempt at maintaining and conserving the inequity between the POW status of state and non-state fighters, and this would only go onto confuse attempts to engage NSAGs on humanitarian or conflict resolution grounds, as cost of such engagements appear to be largely erratic. In lieu of pending domestic criminal prosecution, the many insurgent fighters would forfeit significant humanitarian protections.
IV. The Government’s hesitancy at engagements with NSAGs
Today the greatest danger to the Middle East, and by extension to the rest of the world, is the explosive situation in vast swathes of the Arabian Peninsula, where the ISIS and the state along with the US-led coalition is locked in a violent confrontation, a somber, dreadful picture indeed.
This past year has seen an unabated spate of operations- strikes and counterstrikes both by ISIS combatants and the coalition forces against both the state apparatus and civilians. The US government along with its coalition partners and their bevy of administrators, policymakers and analysts, who were known to have been living in willful denial of the ISIS phenomenon after withdrawing from Iraq, has come under sharp criticism for its incapability to deal with the problem.
V. Why we need to control the NSAGs?
The world is as of yet a nascent system grappling with war & violence, proliferating terrorism & traumatic inflictions on innocent civilians. International humanitarian law, traceable to the dawn of humanity’s cultural consciousness, has gradually taken shape & gained strength. So, in fact to some extent, with the intervention of various charters of United Nations, there has been an apparent control over the raging war between NSAGs & the State.
The controversial question arises who would be the actual body to control or measure the NSAGs. In this question, there has been only avoidance of responsibility among various states. The lethargic & callous attitude towards the role of NSAGs has been proved to be matter of great import.
As we can longer be dependent on state’s role to control the NSAGs, it is about time that the Non-Governmental Organizations should come forward & take this opportunity to prove their social responsibility is much greater than that of “state”.
In the next post, I will discuss the current situation of NSAGs, state’s disposition to engage NSAGs, the effectiveness of NGOs in this regard, different elements of negotiation and the relevant humanitarian policies.
(* Devaditya is a qualified lawyer and an author, having authored three books on international relations, sports law and maritime law. He is presently plying his trade with of one of India’s most reputed niche firms, where the work involves General Corporate Advisory with specialization in Corporate Finance and Mergers and Acquisitions. He can be reached at firstname.lastname@example.org)