Abstract
The terms ‘armed non-state actors’ (ANSAs), ‘organized armed groups’, ‘insurgents’ or ‘terrorist groups’ are not defined in international treaties or international customary law. However, there are legal and political consequences attached to these terms. As an effort to better understand the concept of an ANSA itself and its regulation under international law, this chapter proposes to further reflect on what are ANSAs, by proposing a critical analysis of each of its constitutive terms: ‘armed’ v. ‘non-armed’, ‘state’ v. ‘non-state’, and ‘actors’ v. ‘individual’. We will see that a multiplicity of meanings and legal consequences can be drawn from each of these apparently straightforward words, which perhaps shows that the concept of an ANSA is not as well understood under international law as one would hope.
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Notes
- 1.
Eluard 1929.
- 2.
Clapham 2009, p 200.
- 3.
The International Brigades were constituted of groups of foreign volunteers of different nationalities who fought on the Republican side against the Nationalist forces during the Spanish Civil War of 1936–39. See Encyclopedia Britannica 2017.
- 4.
Dearden L and Osborne S 2018 British woman killed fighting for all-female Kurdish militia in Syria, The Independent, 19 March 2018. https://www.independent.co.uk/news/world/middle-east/british-woman-killed-syria-anna-campbell-lewes-east-sussex-fighting-all-female-kurdish-militia-a8262831.html. Accessed 4 September 2018.
- 5.
In 2017, The United States even decided to arm Kurdish armed groups in their fight against the Islamic State. The Guardian 2017 US to arm Kurdish fighters against Isis in Raqqa, despite Turkish opposition, 9 May 2017. https://www.theguardian.com/world/2017/may/09/us-arm-kurdish-fighters-syria-isis-raqqa-trump. Accessed 4 September 2018.
- 6.
On the concept of ‘the signified’ and the ‘significant’, see Ferdinand de Saussure, Course of General Linguistics, (1916) (translation 2011).
- 7.
Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the protection of victims of international armed conflicts, opened for signature 8 June 1977, 1125 UNTS 3, entered into force 7 December 1978 (AP I), Article 96, para 3 provides that: ‘The authority representing a people engaged against a High Contracting Party in an armed conflict of the type referred to in Article 1, para 4 may undertake to apply the Conventions and this Protocol in relation to that conflict by means of a unilateral declaration addressed to the depositary. Such declaration shall, upon its receipt by the depositary, have in relation to that conflict the following effects: (a) the Conventions and this Protocol are brought into force for the said authority as a Party to the conflict with immediate effect; (b) the said authority assumes the same rights and obligations as those which have been assumed by a High Contracting Party to the Conventions and this Protocol; and (c) the Conventions and this Protocol are equally binding upon all Parties to the conflict.’
- 8.
ICRC 2016, paras 529–530.
- 9.
Additional Protocol I (1977) supplements the Geneva Conventions (1949) and applies in situations as defined by Common Article 2 of the conventions, which reads: ‘In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance’.
- 10.
Rule 4 of the ICRC Customary International Humanitarian Law study defines the term ‘armed forces’ as consisting of ‘all organized armed forces, groups and units which are under a command responsible to that party for the conduct of its subordinates’. It further underlines that this rule only applies in international armed conflicts (IACs), although for the principle of distinction, ‘it may also apply to State armed forces in non-international armed conflicts’. ICRC n.d. Customary IHL Database, rule 4.
- 11.
Gebhard 2010, para 1.
- 12.
Barnidge 2011, para 1. See Geneva Convention relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135, entered into force 21 October 1950 (Geneva Convention III), Articles 4(1) and 4(2).
- 13.
ICRC 2009, p 27.
- 14.
See YPG International (n.d.) Rojava. http://ypg-international.org/rojava/. Accessed 1 June 2018.
- 15.
BBC News 2017 Profile: Hamas Palestinian movement, 12 May 2017. https://www.bbc.com/news/world-middle-east-13331522. Accessed 1 June 2018.
- 16.
Weber 1946.
- 17.
Policzer 2005, p 8.
- 18.
European Union 2012.
- 19.
Conciliation Resources (Accord 2004), quoted in Dudouet 2007, p 4.
- 20.
Sinno 2011, p 321.
- 21.
Bellal 2017b, pp 43–47.
- 22.
Shultz et al. 2004, p 18.
- 23.
Schneckener 2007, p 11.
- 24.
See Peace Insights n.d.
- 25.
Shultz et al. 2004, p 23.
- 26.
See notably Thompson 2014, p 90.
- 27.
See Stanford University n.d.
- 28.
Thompson 2014, p 71.
- 29.
See Global Security n.d.
- 30.
See International Crisis Group 2017.
- 31.
Bellal 2014.
- 32.
Shultz et al. 2004, p 29.
- 33.
Bangerter 2010, p 392.
- 34.
See Lambin 2018, p 87.
- 35.
Shultz et al. 2004, p 21.
- 36.
Ruthven 2015.
- 37.
On this ANSA, see Council for Foreign Relations 2009.
- 38.
Bhatia 2005, p 9.
- 39.
Ibid., p 12.
- 40.
See Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, opened for signature 12 December 1977, 1125 UNTS 3, entered into force 7 December 1979 (AP I), Article 51(2); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 609, entered into force 7 December 1978 (AP II), Article 13(2).
- 41.
ICTY, Prosecutor v Stanislav Galić, Judgment, 5 December 2003, Case No. IT-98-29-T, paras 113–129.
- 42.
See for example French Court of Cassation, Judgement n° 5259, 7 October 2016 (16-84.597) (in French). https://www.courdecassation.fr/jurisprudence_2/chambre_criminelle_578/5259_7_35190.html. Accessed 7 September 2018. See further Van Steenberghe 2018.
- 43.
Swiss Federal Department of Foreign Affairs and International Committee of the Red Cross 2009, p 9.
- 44.
Thompson 2014, p 71.
- 45.
Schneckener 2007, p 10.
- 46.
See generally Gross 2015.
- 47.
ICRC 2015.
- 48.
For more details, see on this Bellal and Doswald-Beck 2011.
- 49.
- 50.
UN General Assembly 1970.
- 51.
Saul, p 10.
- 52.
Honoré 1988, p 38.
- 53.
Ibid., p 42.
- 54.
Ibid., p 43. A ‘right to rebel’ is also included in the constitutions of Benin (see Article 66, Constitution of the Republic of Benin), Burkina Faso (see Article 167, Constitution of Burkina Faso), Chad (see Preamble, Constitution of Republic of Chad), Cuba (see Article 3, Constitution of the Republic of Cuba), Czech Republic (see Czech Charter of Fundamental Rights and Freedoms, Article 23), the Democratic Republic of the Congo (see Article 64, Constitution of the Democratic Republic of the Congo); Ecuador (see Article 98, Constitution of the Republic of Ecuador); El Salvador (see Articles 87–88, Constitution of the Republic of El Salvador); Estonia (see Article 54, Constitution of the Republic of Estonia), Greece (see 2001 Greek Constitution, Article 120(4)), Honduras (see Article 3, Constitution of Honduras), Liberia (see Article 1, Constitution of the Republic of Liberia), Peru (see Article 46, Constitution of Peru), Portugal (see Articles 7(3), 21, Constitution of the Portuguese Republic), Slovakia (see Article 32, Constitution of the Slovak Republic), Togo (see Article 45, Constitution of the Republic of Togo), and Venezuela (see Article 350, Constitution of the Bolivarian Republic of Venezuela).
- 55.
UN General Assembly 1948.
- 56.
Morsink 1999, p 312.
- 57.
Honoré 1988, p 42. In his Separate Opinion on the ICJ, Accordance with international law of the unilateral declaration of independence in respect of Kosovo, Advisory Opinion, 22 July 2010, ICJ Reports 2010, para 206, Judge Cançado Trindade, without recognizing a ‘right to rebel through the use of force’ per se, did argue that the rights of peoples and individuals as protected by the Universal Declaration of Human Rights and international law in general prevented States from claiming the absolute respect of territorial integrity in case of human rights abuses. According to him, ‘no State can, after perpetrating such heinous crimes, then invoke or pretend to avail itself of territorial integrity: the fact is that any State that acts this way ceases to behave like a State vis-à-vis the victimized population’.
- 58.
UN Security Council 2004.
- 59.
African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, opened for signature 23 October 2009, 52 ILM 397, entered into force 6 December 2012, Article 1.
- 60.
See Bianchi 2009.
- 61.
See UN International Law Commission 2001.
- 62.
Montevideo Convention on the Rights and Duties of States, opened for signature 26 December 1933, 165 LNTS 19, entered into force 26 December 1934, Article 1. Two additional criteria have also been suggested: independence and legitimacy, see Crawford 1976, pp 93–182.
- 63.
Chen 2000, p 39.
- 64.
Ibid., p 40.
- 65.
See BBC News 2017 Somaliland profile, 14 December 2017. http://www.bbc.com/news/world-africa-14115069. Accessed 12 September 2018; Caramel 2017 Somaliland, les leçons d’un pays fantôme, Le Monde, 10 December 2017. https://www.lemonde.fr/afrique/article/2017/12/10/somaliland-les-lecons-d-un-pays-fantome_5227623_3212.html. Accessed 12 September 2018.
- 66.
The Swiss NGO Geneva Call engages with ANSAs understood as ‘organized armed entities that include armed groups, national liberation movements and de facto governing authorities … [and] non-recognized States’, see Geneva Call 2019b Armed Non-State Actors that were engaged by Geneva Call. The organization has notably engaged Somaliland on humanitarian issues, Geneva Call 2007.
- 67.
Africa Research Bulletin, June 1976, p 4047 and July 1976, pp 4078 and 4081.
- 68.
See African Union (n.d.)
- 69.
See Centro de Estudos do Sahara Occidental da Universidad de Santiago de Compostela (n.d.)
- 70.
See Geneva Call 2019a Western Sahara.
- 71.
See United Nations (n.d.)
- 72.
Mastorodimos 2015, p 71.
- 73.
Clapham 2006, p 273.
- 74.
The relevant part of Article 44(3) AP I states that: ‘In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly: (a) during each military engagement, and (b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate’.
- 75.
ICRC 1987 commentary of Article 1, para 4 notes that: ‘In international law there is no definition of what constitutes a people; there are only instruments listing the rights it is recognized all peoples hold. Nor is there an objective or infallible criterion which makes it possible to recognize a group as a people: apart from a defined territory, other criteria could be taken into account such as that of a common language, common culture or ethnic lies’. ICRC 1987, para 103.
- 76.
Glazier 2009, para 18.
- 77.
See Swiss Confederation 2015.
- 78.
- 79.
The Arantzazu Mendi case, House of Lords, Judgment of 23 February 1939, L.R., [1939] A.C. 256 reproduced in 1942 ILR 60, at 65 et seq, cited by Schoiswohl 2001, p 51.
- 80.
See on the justification of self-defense by the USA against the Taliban in 2001, Wolfrum and Philipp 2002, p 584 and ff.
- 81.
In its report of 2011, the International Commission of Inquiry on Libya stated that, ‘it is increasingly accepted that where non-state groups exercise de facto control over territory, they must respect fundamental human rights of persons in that territory’. UN Human Rights Council 2011, para 72. On the applicability of human rights law to ANSAs, see Zegveld 2002, p 54; Fortin 2017a; Murray 2016.
- 82.
UN Security Council 2004.
- 83.
- 84.
- 85.
Sinno 2011, p 312.
- 86.
ICRC 2008.
- 87.
ICTY, Prosecutor v Boškoski and Tarčulovski, Judgment, Trial Chamber, 10 July 2008, Case No IT-04-82-T, para 195 and ff.
- 88.
See the well-known definition of conflict in the ICTY Tadić case: ‘[A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’. ICTY, Prosecutor v. Dusko Tadić (aka ‘Dule’), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995, Case No. IT-94-1, para 70.
- 89.
- 90.
Burke J 2016 Ex-child soldier Dominic Ongwen denies war crimes at ICC trial, The Guardian, 6 December 2016. https://www.theguardian.com/world/2016/dec/06/dominic-ongwen-the-hague-trial-war-crimes-lra-uganda. Accessed 5 June 2018.
- 91.
Kleffner 2009, p 246.
- 92.
Bellal 2016.
- 93.
See Clapham 2008.
- 94.
Bellal 2017a.
- 95.
For example the UN Secretary General reports on Children and armed conflict contain a list of states as well as ANSAs that commits one or more grave violations against children. UN Secretary General 2017.
- 96.
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Bellal, A. (2020). What Are ‘Armed Non-State Actors’? A Legal and Semantic Approach. In: Heffes, E., Kotlik, M., Ventura, M. (eds) International Humanitarian Law and Non-State Actors. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-339-9_2
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