The rise of armed non-state actors and our failure to adequately react

In recent weeks, the international media spotlight has focused on Peshmerga forces joining the battle in Kobane, accusations of sexual slavery perpetrated by Daesh fighters, and continuing airstrikes by the US-led coalition, once again without UN Security Council approval. These developments beg the question: has the nature of modern warfare evolved so dramatically the international legal architecture has been rendered obsolete?

The devastation of infrastructure and loss of life in World War II demonstrated that the international law of the day, which imposed obligations principally on states, was insufficient to protect civilians during conflict. This paved the way for the Fourth Geneva Convention (1949) which defined rights and protections afforded to civilians and non-combatants in and around a conflict-zone.

Today, the people of West Asia-North Africa (WANA) may be experiencing some déjà vu.

A defining characteristic of conflict in the region is the proliferation of armed non-state actors (ANSA). As defined at a 2013 conference organised by Appel de Genève, these groups operate outside of state control and lack the legal capacity to become party to any international treaty. They include (but are not limited to) liberation movements, de facto governing authorities, and states that are not or are partially recognised internationally.

In WANA, religiously-motivated organisations get the most press, most notably, Daesh - the Sunni militant organisation with a self-proclaimed but unrecognised state. One of Daesh's fiercest opponents is Hezbollah, a Shia political party and militant actor.

But religion is hardly the only motivator; the recent assault on a Jerusalem synagogue was claimed by the Marxist-Leninist revolutionary organisation Popular Front for the Liberation of Palestine (PFLP). ANSA motivations can also overlap, occasionally leading to contradictory alliances: while Hezbollah combats Sunni organisations in Iraq and Syria, the organisation stood with Sunni Hamas in defiance of Israel this past summer.

While ANSAs are not exclusively predatory, in the WANA context some have recently distinguished themselves through extreme acts of violence perpetrated against civilian populations: rape, forced marriage and recruitment, mutilation, and execution. In the face of such depravity, one must question, how can these groups be stopped and, until that time, how can greater obligations be imposed upon them during periods of warfare?

There are three relevant sources of international jurisprudence. Common Article 3 to the four Geneva Conventions protects civilians from violence, torture and summary execution in non-international armed conflict. Customary International Humanitarian Law (IHL) relevant to ANSAs provides that civilians under enemy force control must be treated humanely and be protected against all forms of violence and degrading treatment, including murder and torture. Additional Protocol II to the Geneva Conventions (1977) extends the rules of the law of armed conflicts to non-international armed conflicts. However, while the Geneva Conventions are universally ratified, and IHL applies universally, Additional Protocol II has not been ratified by Iraq or Syria.

Dominant understandings of human rights law may also be evolving in acknowledgment of the role of non-state actors. A 2009 Report of the High Commissioner of Human Rights stated that non-state actors that exercise government like functions and control over a territory are obliged to respect human rights norms. Further norms can be found in non-binding sources of international law, such as the Guiding Principles on Internal Displacement (1988).

So does the current legal framework address ANSAs? Yes. Is it as comprehensive as it needs to be? Clearly not. In IHL there are gaps, for example the absence of a general right to freedom of movement, and the obligations on states are more robust than on ANSAs. Moreover the legal framework fails to deal with emerging challenges such as asymmetric warfare, humanitarian access and detention by ANSAs. But while there is room for improvement, the law is there.

So why is this not stopping the violence? In some cases, ANSAs are not aware of their international legal obligations. The key issue, however, is about enforcement. If legal principles exist, but the capacity or willingness to enforce them is absent, they will not be respected.

There are four clear legal bases upon which intervention against Daesh could be justified. First, Syria and/or Iraq could exercise their right to self-defense under Article 51 of the UN Charter (1945). Whether they are capable of doing this effectively is another matter, and Daesh’s continuing advancement suggests that they are not.

Second, international intervention under article 42 could be envisaged, but this would require a Security Council mandate which seems unlikely in the present climate.

A third avenue is third party intervention at the request or with the consent of an affected state that cannot act defensively. This certainly covers the actions of the coalition force, comprising the United States, Bahrain, Jordan, Qatar, Saudi Arabia and the United Arab Emirates, in Iraq. Some contend that Syria implied its consent, referencing government statements regarding a common enemy and the need to act together, and evidenced by its non-attempts to stop or react to US-led coalition airstrikes against Daesh targets in Syria. The validity of this claim is speculative.

Fourth, there is the premise upon which the US-led coalition force is relying on for actions in Syria: the collective right to self-defense in a context where Syria is unable or unwilling to do the job itself. Iraq clearly has a valid claim to self-defense, and to exercise this right collectively. Whether it can extend this claim to Syria is again unclear in international law, and whether coalition states could do the same is even less so.

Accountability is another mechanism for encouraging ANSAs to abide by the rules of war, but again the legal framework is riddled with holes. Violations of IHL could be tried in national courts or quasi-international courts, neither of which seem realistic at this point in the conflict. Moreover, neither Syria nor Iraq is party to the Rome Statue of the International Criminal Court (1998). The Court can only obtain jurisdiction if the Security Council refers the situation in Syria to the court (which was attempted in May 2014 but vetoed by China and Russia), or Syria voluntarily accepts jurisdiction.

To urge compliance, a new approach is necessary, and our thinking must extend outside of the law. The Appel de Genève’s Deed of Commitment is an innovative mechanism that allows ANSAs to pledge to respect specific humanitarian norms and be held publically accountable. Including positive obligations in bi-lateral peace agreements may be another way forward. This would involve better engagement with such groups, something that has been heavily resisted by states and third party government stakeholders on the grounds that engagement denotes legitimation.

Yet another approach is the better engagement of religious actors in peace building, including faith-based mediation, or drawing upon the Islamic laws of war. The recent open letter from 120 Islamic scholars to IS denouncing them as un-Islamic is emblematic of the scope for more nuanced approaches that fit the WANA context.  Long-term, it is the international justice system that needs to fix the problem, but until this time the needs of civilians cannot wait. The burden is on state and international actors to come up with viable alternatives.