Abstract
The International Committee of the Red Cross (ICRC) has a long experience working with non-State armed groups (NSAGs) in various contexts with the aim of generating respect for international humanitarian law (IHL) by those groups. This chapter discusses the legal bases for the ICRC’s work in that respect, concrete ways to integrate IHL into NSAGs’ practice, as well as recent developments. Some of the challenges faced by the ICRC in its work with NSAGs, such as how to take into account NSAGs practice into IHL clarification and development processes, and the risk of criminalizing humanitarian action and IHL dissemination activities with NSAGs by overbroad anti-terrorist legislation will also be tackled.
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- 1.
On this aspect, see Melzer 2016, pp 316–322.
- 2.
This chapter aims to discuss the legal aspects of the ICRC’s work with NSAGs; for the operational issues, see e.g. Terry 2011.
- 3.
See de Maio J (2015) Why is the ICRC holding seminars on the law of war with Hamas? The Jerusalem Post, 7 September 2015. http://www.jpost.com/Opinion/Why-is-the-ICRC-holding-seminars-on-the-law-of-war-with-Hamas-415530. Accessed 5 October 2017.
- 4.
See Convention relative to the Treatment of Prisoners of War, opened for signature 27 July 1929, 118 L.N.T.S. 343, entered into force 19 June 1931, Articles 78, 86, 87 and 88.
- 5.
- 6.
Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, opened for signature 22 August 1864, 11 L.N.T.S. 440, entered into force 9 August 1907.
- 7.
Bugnion 2003, p 30.
- 8.
Durand 2012, p 61.
- 9.
ICRC 2005.
- 10.
Palmieri 2012, p 1282.
- 11.
On this issue, see Bugnion 2003, pp 244–296. On the ICRC’s offer of services in NIACs, see pp 417–422.
- 12.
Ibid., pp 261–262.
- 13.
The work of the ICRC is based on four approaches: Protection, Assistance, Cooperation, and Prevention. For more information about each of these approaches, see e.g. ICRC 2009a, pp 23.
- 14.
- 15.
On Common Article 3, see ICRC 2016c, paras 779–840, 861–869.
- 16.
Statutes of the Red Cross and Red Crescent Movement, adopted by the 25th International Conference, amended in 1995 and 2006. Other important international legal documents includes the Rules of Procedure and Evidence of the ICC, Adopted by the Assembly of States Parties First session, New York, 3–10 September 2002, Official Records ICC-ASP/1/3, Rule 73(4), Rules of Procedure and Evidence, Mechanism for International Criminal Tribunals, MICT/1/Rev.2, 26 September 2016, Rule 10 and the Rules of Procedure and Evidence, Special Tribunal for Lebanon, STL-BD-2009-01-Rev.9, April 2017, Rule 164, which recognize ICRC’s privilege on non-disclosure.
- 17.
Statutes of the Red Cross and Red Crescent Movement, adopted by the 25th International Conference, amended in 1995 and 2006, Articles 5(2)(c) and (2)(g).
- 18.
The Movement is composed of the Red Cross and Red Crescent national societies, the International Federation of Red Cross and Red Crescent Societies (IFRC) and the ICRC.
- 19.
See Bugnion 1995.
- 20.
On this topic see, among others, Bangerter 2011, pp 353–384.
- 21.
ICRC 2010, p 5.
- 22.
ICRC 2007.
- 23.
ICRC 2004, p 16.
- 24.
See ibid., pp 15–16
- 25.
Ibid.
- 26.
For a good overview on the subject, see La Rosa and Wuerzner 2008.
- 27.
ICRC 2007, p 23
- 28.
- 29.
See Beerli 2016: ‘we encourage armed groups to provide an appropriate level of instruction in the international rules and to implement codes of conduct for their members. We have worked with a number of armed groups to help them in this task, commenting on Codes of Conduct or providing initial training so that they can begin to train their own personnel’.
- 30.
ICRC 2011b, pp 485.
- 31.
For examples, see the ICRC’s database ‘IHL in Action: Respect for the Law on the Battlefield’, which compiles examples of good practices in relation to IHL. In particular, see the section on ‘implementation mechanisms’, which lists cases of IHL training and dissemination. ICRC, Implementation Mechanisms. See also Somer 2007, pp 678–682.
- 32.
ICRC 2011b.
- 33.
See ibid., p 487 (People’s Liberation Army (China) Three Main Rules of Discipline and Eight Points of Attention).
- 34.
See ibid., p 493, para 14 (Revolutionary Armed Forces of Colombia-People’s Army (FARC-EP) and ELN (Colombia) Rules of conduct with the masses).
- 35.
This version was reproduced in the International Review of the Red Cross 2011, No. 881, Munir 2011, Annex pp 103–120.
- 36.
See for instance Maurer 2016.
- 37.
See ICRC 2017, p 466. Other recent examples include Mali, where in 2016 the ICRC organized workshops with over 100 community and religious leaders and around 50 magistrates and religious leaders. The goal was to discuss points of correspondence between Islamic law and IHL. See ibid. at 160. Similarly, in Niger in 2016, ‘over 360 community and religious leaders from Diffa and elsewhere examined the points of correspondence between Islamic law and IHL, at workshops co-organized with university lecturers … and at international courses … with their attendance sponsored by the ICRC’. See p 173. See similar examples in Uganda, p 209; in Burkina Faso, p 214; in Tunisia, p 248; in Afghanistan, p 317; in Bangladesh, p 323; in Pakistan, p 340; in Indonesia, p 357; in Jordan, p 485.
- 38.
On the issue, see Al-Dawoody 2017.
- 39.
See ICRC 2009b.
- 40.
See Sassòli, Bouvier and Quintin, Former Yugoslavia, Special Agreements between the Parties to the Conflicts, Section A. Yugoslavia/Croatia, Memorandum of Understanding of November 27, 1991, paras (5)–(7). https://casebook.icrc.org/case-study/former-yugoslavia-special-agreements-between-parties-conflicts. Accessed 27 February 2018.
- 41.
Ibid., Section B. Bosnia and Herzegovina, Agreement No. 1 of May 22, 1992.
- 42.
Comprehensive agreement on the respect for Human Rights and International Humanitarian Law between the government of the Philippines and the National Democratic Front of the Philippines, signed on 16 May 1998 in The Hague. http://www.incore.ulst.ac.uk/services/cds/agreements/pdf/phil8.pdf. Accessed 20 February 2018.
- 43.
Ibid., Part II, Article 3.
- 44.
Ibid., Part III, Article 4.
- 45.
Agreement between the government of Sudan and the Sudan People’s Liberation Movement to protect civilian non-combatants and facilities from military attacks, 31 March 2002. http://peacemaker.un.org/sites/peacemaker.un.org/files/SD_020331_Agreement%20to%20Protect%20Non-Combatant%20Civilians%20from%20Military%20Attack.pdf. Accessed 6 October 2017.
- 46.
See International Commission of Inquiry on Darfur 2005.
- 47.
ICRC 2008b, p 17.
- 48.
See ICTY, The Prosecutor v. Enver Hadzihasanovic and Amir Kubura, Decision on Joint Defence Interlocutory Appeal of Trial Chamber on Rule 98bis Motion for Acquittal (Appeals Chamber), 11 March 2005, Case No. IT–01–47–AR73.3, para 28, fn. 51. See also ICTY, The Prosecutor v. Stanislav Galic, Trial Judgment, 5 December 2003, Case no. IT-98-29-T, para 96 (finding that the 1992 agreement had rendered applicable Article 51 of AP I for the purposes of the crime of spreading terror among the civilian population).
- 49.
With the very rare exception of armed groups involved in a war of national liberation meeting the conditions of Article 1(4) of the Additional Protocol I, and provided that such groups respect the conditions stated in Article 96.3. See also Chap. 2 by Bellal in the present volume.
- 50.
- 51.
- 52.
See, for instance, the Agreement on Ceasefire and Cessation of Hostilities Between the Government of the Republic of Liberia and Liberians United for Reconciliation and Democracy and the Movement for Democracy in Liberia at Article 5, Annex 1, Comprehensive Peace Agreement Between the Government of Liberia and the Liberians United for Reconciliation and Democracy (LURD) and the Movement for Democracy in Liberia (MODEL) and Political Parties, signed in Accra on 18 August 2003. https://www.usip.org/sites/default/files/file/resources/collections/peace_agreements/liberia_08182003.pdf. Accessed 6 October 2017.
- 53.
The signature of a peace agreement, however, does not necessarily mean that the conflict is over. This should be evaluated following a factual analysis of the situation on the ground based on the legal criteria established by IHL. On this issue, ICRC 2016c, paras 485–496. See also ICTY, The Prosecutor v. Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj, Trial Chamber Judgement, 3 April 2008, Case No. IT-04-84-T, para 100.
- 54.
Comprehensive Peace Agreement Between the Government of Liberia and the Liberians United for Reconciliation and Democracy (LURD) and the Movement for Democracy in Liberia (MODEL) and Political Parties, signed in Accra on 18 August 2003, Article 10. https://www.usip.org/sites/default/files/file/resources/collections/peace_agreements/liberia_08182003.pdf. Accessed 6 October 2017. For other examples, see ICRC 2008b, pp 25–26.
- 55.
ICRC 2008b, p 26.
- 56.
On this issue of constitutive and declaratory agreements, see ibid., p 16. See also Heffes and Kotlik 2014, p 1205.
- 57.
ICRC 2008b, p 26.
- 58.
Ibid., p 15.
- 59.
See Almeghari 2007. See also MEE Staff 2015 Hamas fighters take part in Red Cross international law workshop, Middle East Eye, 16 August 2015. http://www.middleeasteye.net/news/hamas-fighters-take-part-red-cross-international-law-workshop-1553272322. Accessed 6 October 2017.
- 60.
Freund M (2015) Why is the Red Cross Holding Seminars for Hamas? The Jerusalem Post, 18 August 2015. http://www.jpost.com/Opinion/Why-is-the-Red-Cross-holding-seminars-for-Hamas-412500. Accessed 6 October 2017.
- 61.
Ibid.
- 62.
de Maio J (2015) Why is the ICRC holding seminars on the law of war with Hamas? The Jerusalem Post, 7 September 2015. http://www.jpost.com/Opinion/Why-is-the-ICRC-holding-seminars-on-the-law-of-war-with-Hamas-415530. Accessed 5 October 2017.
- 63.
Rudoren and Waheidiaug 2015.
- 64.
The online training is available in Arabic on the ICRC’s website at https://www.icrc.org/ar/document/law-armed-conflict-essentials. Accessed 6 October 2017.
- 65.
ICRC 2017, p 191.
- 66.
Ibid., at 198
- 67.
ICRC 2016d.
- 68.
- 69.
ICRC 2015a, p 496.
- 70.
ICRC 2016a, p 502.
- 71.
ICRC 2017, p 485.
- 72.
Health Care in Danger n.d. It’s a Matter of Life and Death. http://healthcareindanger.org/hcid-project/. Accessed 13 October 2017.
- 73.
Ibid.
- 74.
See de Maio J (2015) Why is the ICRC holding seminars on the law of war with Hamas?, The Jerusalem Post, 7 September 2015. http://www.jpost.com/Opinion/Why-is-the-ICRC-holding-seminars-on-the-law-of-war-with-Hamas-415530. Accessed 5 October 2017.
- 75.
ICRC 2015c, at 27–29.
- 76.
Ibid., pp 30–44.
- 77.
See model of unilateral declaration for NSAGs in ibid., p 49.
- 78.
See ICRC 2016a.
- 79.
Ibid.
- 80.
ICRC 2018.
- 81.
Arms Trade Treaty, opened for signature 2 April 2013, UNTS No. 52373, entered into force 24 December 2014, Article 6(3).
- 82.
Interview with Ali Ahmad Jalali 2011, p 285.
- 83.
See ICRC 2009b.
- 84.
Sassòli 2011, p 429.
- 85.
‘Combatants and non-combatants? The distinction is clear! Health care? Without discrimination! Anti-personnel mines? Illegal! The Red Cross? It is sacred!’ Translation by the authors. The playing cards were produced by the ICRC Delegation in Abidjan in 2010.
- 86.
26th International Conference of the Red Cross and Red Crescent 1995.
- 87.
See Henckaerts 2005, p 178 (the existence of a rule of customary law is determined by State practice and opinio juris, excluding the practice of NSAG).
- 88.
See Sassòli 2011, p 428.
- 89.
See Provost 2011, p 441.
- 90.
On this, and for other example, see Sassòli 2011, pp 429–430.
- 91.
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), opened for signature 12 December 1977, 1125 UNTS 609, entered into force 7 December 1978, Article 6, para 5; and ICRC Study on Customary IHL, Rule 159.
- 92.
ICRC Study on Customary IHL, Rule 159: ‘At the end of hostilities, the authorities in power must endeavour to grant the broadest possible amnesty to persons who have participated in a non-international armed conflict, or those deprived of their liberty for reasons related to the armed conflict, with the exception of persons suspected of, accused of or sentenced for war crimes’. The exception of war crimes is well enshrined in State practice, as attested by the ICRC Study. See practice related to Rule 159 at https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule159.
- 93.
For a general overview of IHL challenges, see ICRC 2015b.
- 94.
See ICRC 2011a.
- 95.
Ibid., para 6.
- 96.
Ibid.
- 97.
See Ibid., para 5 (‘acknowledges that strengthening the IHL protection for persons deprived of their liberty by any party to an armed conflict is a priority’).
- 98.
ICRC 2015d, p 32.
- 99.
Ibid.
- 100.
Ibid.
- 101.
- 102.
ICRC 2015b, p 32.
- 103.
Ibid.
- 104.
Optional Protocol to the Convention on the Rights of the Child, on the involvement of children in armed conflict, New York, opened for signature 25 May 2000, UNTS No. 27531, entered into force 12 February 2012, Article 3(5).
- 105.
Testimony from ICRC staff collected by the authors. See also Chap. 14 by Kotlik in the present volume.
- 106.
ICRC 2015d, p 34.
- 107.
International Conference of the Red Cross and Red Crescent 2011a, para 6.
- 108.
ICRC and Swiss government 2015a.
- 109.
- 110.
32nd International Conference of the Red Cross and Red Crescent 2015, para 2.
- 111.
ICRC and Swiss government 2015a.
- 112.
Ibid., p 26.
- 113.
ICRC and Swiss government 2013, at 2.
- 114.
- 115.
32nd International Conference of the Red Cross and Red Crescent 2015, para 2.
- 116.
Ibid.
- 117.
Durham 2018.
- 118.
- 119.
See for instance the various terrorist lists maintained by the UN, through Security Council Resolution 1267 (1999), concerning certain sanctions against the Taliban, and subsequent resolutions concerning sanction lists. https://www.un.org/sc/suborg/en/sanctions/1267/aq_sanctions_list. Accessed 9 October 2017. The European Union uses the UN terrorist lists but also maintains its own independent list. See for instance Thorne 2006. Countries that maintain a list of terrorist organizations include Australia under the Security Legislation Amendment (Terrorism) Act 2002, India under the Unlawful Activities (Prevention) Act, the Russian Federation through its National Anti-Terrorism Committee, the United Kingdom under the Terrorism Act 2000, or the United States through a number of governmental mechanisms, including the US State Department list of Foreign Terrorist Organizations, the Terror Exclusion List or lists maintained directly by other branches of the government.
- 120.
UN Security Council 2001, para 1(d).
- 121.
18 U. S. C. §2339B(a)(1).
- 122.
Ibid.
- 123.
US Supreme Court, Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), 130 S.Ct. 2705.
- 124.
On this issue, see Acquaviva 2010, pp 1001–1005.
- 125.
On the right of the ICRC to offer its services to all parties to a conflict, see Bugnion 2003, p 403 ff.
- 126.
ICRC 2015b, p 21.
- 127.
European Parliament 2017, para 38. See also NATO Parliamentary Assembly, Committee on the Civil Dimension of Security 2016, para 73 (‘It is also important to recall that in times of armed conflicts, impartial humanitarian organisations, such as the International Committee of the Red Cross, need to have contacts with non-state armed groups that might be designated as terrorist groups. Indeed, these humanitarian organisations are also working in territories under the control of some parties to armed conflicts which are also designated as terrorist groups in order to fulfil their mandate which is to assist and protect the victims of armed conflicts. Therefore, when adopting new legislation, lawmakers should pay attention not to criminalise the activities of impartial humanitarian organisations that are carried out in favour of victims of armed conflicts’).
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Quintin, A., Tougas, ML. (2020). Generating Respect for the Law by Non-State Armed Groups: The ICRC’s Role and Activities. 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_13
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DOI: https://doi.org/10.1007/978-94-6265-339-9_13
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