Abstract
Despite the existence of humanitarian rules binding upon armed non-state actors (ANSAs) in armed conflict, ensuring their respect still remains an important challenge. When dealing with ANSAs, this can be linked to several factors, such as their lack of knowledge of the law, the absence of an incentive to abide by the applicable rules, their fragmented structure, their lack of a centralized command authority and a lack of capacity to implement international humanitarian law (IHL). Certain humanitarian organizations have attempted to tackle these difficulties by recognizing that engaging with ANSAs is essential in order to enhance the protection of civilians in conflict situations. This chapter aims at presenting the methodology employed by Geneva Call, an international non-governmental organization, when trying to persuade ANSAs to respect humanitarian norms. The following pages will provide an overview of this process, describing Geneva Call’s approach and discussing some of its achievements and challenges, in particular in the context of its child protection program.
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Notes
- 1.
See, among many others, Arjona et al. 2015; Rodenhäuser 2018; Murray 2016; Jo 2015; Fortin 2017; Sassòli 2010; Mampilly 2011; Hazen 2013; Staniland 2014; Weinstein 2007; and Zegveld 2002. See also Bellal, Chap. 2, and Henckaerts and Wiesener, Chap. 8 in this volume. Although international law and political science literature normally refers to ‘non-state armed groups’, ‘armed opposition groups’, ‘armed groups’, ‘rebels’ and ‘insurgents’, sometimes indistinctively, this chapter uses ‘armed non-State actors’ (ANSAs), as is used by Geneva Call. This category encompasses organized armed entities that are not under effective State control and lack legal capacity to become parties to relevant international treaties. ANSAs comprise of different types of actors, such as opposition and insurgent movements, dissident armed forces, paramilitary groups, de facto authorities and self-defense militias.
- 2.
- 3.
Maurer 2016.
- 4.
- 5.
See Bangerter 2011, pp 358–383 for other reasons why ANSAs choose to respect the law or not.
- 6.
- 7.
Krieger 2015, pp 4–5.
- 8.
Blakke et al. 2015 The problem with fragmented insurgencies, The Washington Post, 13 May 2015. https://www.washingtonpost.com/news/monkey-cage/wp/2015/05/13/the-problem-with-fragmented-insurgencies/?noredirect=on&utm_term=.7c8f0edbf751. Accessed 3 December 2018 (affirming that a large body of conflict research has demonstrated that ANSAs’ fragmentation ‘makes conflict more violent, longer lasting and harder to resolve’). For the purposes of this chapter, fragmented ANSAs are those that ‘have weak coercive capacity for enforcing organizational decisions and little unity of purpose among leaders. They exist as loose collections of small factions and individuals but are unlikely to summon unity and institutionalized discipline for any substantial period of time’. Staniland 2014, p 8.
- 9.
ICRC 2018, p 23.
- 10.
This follows Jo’s theory of strategic legitimacy, which predicts that ANSAs are more likely to develop the urgency of pursuing legitimacy in the latter part of their life cycle, generally during peace negotiations. See Jo 2015, p 222. See also Fazal 2018, p 6. This can be observed, for example, when an ANSA with an active policy of recruiting and using of child soldiers throughout a conflict decides to demobilize them during peace negotiations. It should be noted, however, this is not true in every context. In Sri Lanka, for instance, it was claimed that the Liberation Tigers of Tamil Eelam (LTTE) were responsible for war crimes during the final months of the civil war, including the use of civilians as human shields, shooting civilians as they tried to flee LTTE control, deploying artillery near civilians and forcibly recruiting children as soldiers. See Ganguly M (2011) Sri Lanka takes the wrong road to peace, Human Rights Watch, 17 May 2011. https://www.hrw.org/news/2011/05/17/sri-lanka-takes-wrong-road-peace. Accessed 3 December 2018. Alternatively, peace or ceasefire negotiations have provided time for ANSAs to rebuild their military capacity, which would explain why weakened groups enter into negotiations but later return to war. Hazen 2013, p 9.
- 11.
Fazal 2018, p 59.
- 12.
- 13.
Nonetheless, it should be noted that there are armed conflicts in which the vast majority of violations are attributed to State armed forces rather than ANSAs. See Bangerter 2011, p 356.
- 14.
As stated elsewhere, from a practical perspective, this has an impact on ANSAs’ respect for IHL, since it seems unlikely that they will accept any set of rules ‘merely by the fact that it has been previously agreed upon by States, be it customary or treaty law’. Heffes and Kotlik 2014, p 1202.
- 15.
- 16.
Geneva Call 2016, p 25.
- 17.
Although in general terms, this dynamic has been correctly identified by Charnovitz when affirming that ‘it has been crusading NGOs that led the way for states to see the international dimension of what was previously regarded as purely domestic matter’. Charnovitz 2006, p 348. In addition, the United Nations (UN) has also taken an active part in the field of child protection by creating a specific framework to address six violations committed against children in times of war. This mechanism allows specific UN agencies to engage both ANSAs and governments on specific international rules. See also Kotlik, Chap. 14 in this volume.
- 18.
Cassese 2005, pp 131–132.
- 19.
- 20.
By ‘humanitarian engagement’, this chapter refers to a non-coercive process of interaction between NGOs and ANSAs for the purpose of ensuring that humanitarian norms and the provision of assistance to populations affected by armed conflicts are respected.
- 21.
Heintze and Lülf 2015, p 110 (arguing that ‘[t]he increasing convergence of IHL and human rights law and the parallel application during armed conflict was one major incentive to reconsider this position’). A 2018 report by Human Rights Watch offers an example concerning the situation in the Democratic Republic of Congo, where the behaviour of ANSAs are included in the same paragraph as those of governmental forces. Sawyer I 2018 Overview of the Political Crisis in DR Congo and the Human Rights, Security, and Humanitarian Consequences, Human Rights Watch, 9 April 2018. https://www.hrw.org/news/2018/04/09/overview-political-crisis-dr-congo-and-human-rights-security-and-humanitarian. Accessed 3 December 2018. Similarly, in 2015 Amnesty International published a report claiming that Kurdish ANSAs in northern Syria were responsible for forced displacement and home demolitions ‘amounting to war crimes’. Amnesty International 2015 Syria: US Ally’s Razing of Villages Amounts to War Crimes, Amnesty International, 13 October 2015. https://www.amnesty.org/en/press-releases/2015/10/syria-us-allys-razing-of-villages-amounts-to-war-crimes/. Accessed 3 December 2018.
- 22.
- 23.
Noortmann 2015, p 205.
- 24.
- 25.
- 26.
- 27.
As Krieger has put it, ‘[e]nforcement and compliance have always been the Achilles heel of international humanitarian law’. Krieger 2015, p 1.
- 28.
Bongard and Somer 2011, pp 684–685; and Sivakumaran 2012, p 538. The choice to address this issue is not arbitrary, considering that ANSAs often use anti-personnel mines, particularly improvised mines: Bongard 2010, p 160. As a recent report has affirmed, ANSAs rely on these weapons ‘with a frequency and scale in recent years that is resulting in a palpable increase in new mine casualties and threatening progress toward the long-held goal of a landmine-free world’. Landmine and Cluster Munition Monitor 2018.
- 29.
Geneva Call n.d. Deed of Commitment under Geneva Call for Adherence to a Total Ban on Anti-Personnel Mines and for Cooperation in Mine Action.
- 30.
Schneckener and Hofmann 2015, p 100.
- 31.
Bongard 2013; and Gillard 2016, p 7. The notion of ownership refers to the capacity and willingness of ANSAs ‘to set, and/or take responsibility for the respect of, norms intended to protect civilians as well as other humanitarian norms applicable in armed conflict’. Geneva Academy 2011, p 6, fn 11. As Ryngaert has suggested, ‘[i]f states create international legal duties for non-state actors without the latter’s consent, the legitimacy of the international legal system may potentially come under strain’. Ryngaert 2010, p 71.
- 32.
Geneva Call n.d., p 17.
- 33.
Schneckener and Hofmann 2015, p 103.
- 34.
A set of modules supports such training. Developed with adult education specialists, these include presentations and practical exercises which aim to address ANSAs’ practical concerns about implementing international standards in the contexts in which they operate. See Geneva Call n.d. How we work.
- 35.
- 36.
Sassòli 2007, p 64. A clear example of this situation is presented by the Immigration and Refugee Board of Canada concerning South Sudan, where it found cases of ‘forcible recruitment and military conscription’ by the government and ANSAs, claiming that certain individuals were picked up and taken to the battlefield, where ‘they were given uniforms and weapons and “almost immediately told to fight”’. Immigration and Refugee Board of Canada 2015.
- 37.
As Bangerter correctly suggests, ‘only a relatively small circle of persons are well aware of legal concepts in any given society, and it is unlikely that leaders of armed groups will be recruited in this particular circle’. Bangerter 2015, p 113.
- 38.
Schneckener and Hofmann 2015, p 101.
- 39.
Ibid.
- 40.
Ibid. They comprise, for instance, the improvement of their reputation, the better treatment of detainees on the principle of reciprocity, military interests – including discipline and a functioning command structure, and the danger of prosecution. Hofmann and Schneckener 2011, p 618.
- 41.
Bangerter 2015, p 117.
- 42.
Ibid.
- 43.
As Sinno explains, control and discipline mechanisms that motivate ANSAs’ members to behave in ways consistent with organizational goals are essential for organizational welfare. Sinno 2008, p 70.
- 44.
Improving respect for international law by ANSAs can indeed be a lengthy process, and although there can be rapid progress in certain areas and with regard to certain norms, real change can only happen through mid-term dialogue. Based on Geneva Call’s experiences, especially in long drawn-out conflicts, engagement takes a minimum of three to five years before changes in behaviour and increased respect for the basic rules of war can take place. See also Bangerter 2015, pp 122–123.
- 45.
Bongard 2010, pp 167–168.
- 46.
Ibid., p 168; and Decrey Warner 2010, p 62.
- 47.
Geneva Call follows the notion of ‘overall control’ as described by the International Criminal Tribunal for the former Yugoslavia: ‘[i]n order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group, not only by equipping and financing the group, but also by coordinating or helping in the general planning of its military activity. Only then can the State be held internationally accountably for any misconduct of the group … The control required by international law may be deemed to exist when a State (or, in the context of an armed conflict, the Party to the conflict) has a role in organizing, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group. Acts performed by the group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts’. ICTY Appeals Chamber, Prosecutor vs. Duško Tadić, Judgment, 15 July 1999, IT-94-1-AR72, paras 131 and 137.
- 48.
Geneva Call n.d. Deed of Commitment under Geneva Call for the Protection of Children from the Effects of Armed Conflict.
- 49.
Geneva Call n.d. Deed of Commitment under Geneva Call for the Prohibition of Sexual Violence in Situations of Armed Conflict and Towards the Elimination of Gender Discrimination.
- 50.
Geneva Call n.d. Deed of Commitment for the Protection of Health Care in Armed Conflict.
- 51.
Geneva Call n.d. How we work.
- 52.
Ibid. It shall be noted that the ceremony sometimes takes place in other locations. This was the case, for instance, in 2014 when the People’s Protection Units/Women’s Protection Units (YPG/YPJ) and the Democratic Self-Administration in Rojava signed the Deeds in north-east Syria. Geneva Call 2014 Syrian Kurdish armed non-State actor commits to ban anti-personnel mines, sexual violence and child recruitment, Geneva Call, 16 June 2014. https://genevacall.org/syrian-kurdish-armed-non-state-actor-commits-ban-anti-personnel-mines-sexual-violence-child-recruitment/. Accessed 3 December 2018; and Geneva Call 2014 Syria: Kurdish armed forces demobilize 149 child soldiers, Geneva Call, 7 July 2014. https://genevacall.org/de/syria-kurdish-armed-forces-demobilize-149-child-soldiers/. Accessed 3 December 2018.
- 53.
Schneckener and Hofmann 2015, p 102.
- 54.
Ibid.
- 55.
According to Martin Barber, at the time Director of the UN Mine Action Service, ‘Sudan would not have felt able to ratify the Treaty of the SPLM/A had not already made a formal commitment to observe its provisions in the territory under its control’. Geneva Call 2007, pp 8–9, fn 18.
- 56.
- 57.
For an analysis on how the ICRC engages parties to armed conflict, see Quintin and Tougas, Chap. 13 in this volume.
- 58.
Geneva Call n.d. Where we work.
- 59.
Geneva Call n.d. Deed of Commitment for the Protection of Children from the Effects of Armed Conflict, Articles 1, 2 and 3.
- 60.
Ibid., preamble.
- 61.
Ibid., Article 7.
- 62.
Geneva Call n.d. Deed of Commitment for the Protection of Health Care in Armed Conflict, Articles 3, 4 and 5.
- 63.
Ibid., Article 6.
- 64.
Ibid., Article 8.
- 65.
Sivakumaran 2012, p 544.
- 66.
Geneva Call 2004, p 23.
- 67.
Geneva Call 2006, p 79.
- 68.
Ibid.
- 69.
Ibid., p 80.
- 70.
Sivakumaran 2012, p 544.
- 71.
Geneva Call 2017.
- 72.
Geneva Call n.d. Deed of Commitment for the Protection of Children from the Effects of Armed Conflict, Article 9; Geneva Call n.d. Deed of Commitment for the Protection of Health Care in Armed Conflict, Article 10; Geneva Call n.d. Deed of Commitment for the Prohibition of Sexual Violence in Situations of Armed Conflict and Towards the Elimination of Gender Discrimination, Article 8; and Geneva Call n.d. Deed of Commitment for Adherence to a Total Ban on Anti-Personnel Mines and for Cooperation in Mine Action, Article 3.
- 73.
For further information about this, see Bongard and Somer 2011, pp 689–701.
- 74.
For instance, this was done through statements delivered at the Meetings of Signatories to the Deeds of Commitment in Geneva. Geneva Call has convened three such meetings to date (in 2004, 2009 and 2014).
- 75.
- 76.
Geneva Call (2018) Destruction of 2,500 stockpiled anti-personnel mines in Western Sahara, Geneva Call, 30 May 2018. https://genevacall.org/destruction-of-2500-stockpiled-anti-personnel-mines-in-western-sahara/. Accessed 3 December 2018.
- 77.
As pointed out by Sivakumaran, ‘[a]s with much of the law of non-international armed conflict, instances of violation are publicized, leading to a perception that the law is something which is neglected or ignored. Non-state armed groups in particular are criticized for violating the law. This approach assists in the re-orientation of such perception, giving credit where it is due’ (emphasis added). Sivakumaran 2012, p 541.
- 78.
Geneva Call (2018) Syria: new measures taken by the Kurdish People’s Protection Units to stop recruiting children under 18, Geneva Call, 22 June 2018. https://genevacall.org/syria-new-measures-taken-by-the-kurdish-peoples-protection-units-to-stop-using-children-under-18/. Accessed 3 December 2018.
- 79.
Ibid.
- 80.
Jo 2017, p 69.
- 81.
Gross 2014, p 74.
- 82.
For a brief summary of the conflict, see Jo 2015, pp 203–205.
- 83.
Human Rights Watch 2002.
- 84.
Ibid.
- 85.
Ibid.
- 86.
UN Secretary-General 2003, p 22.
- 87.
In Resolution 1539, the UN Security Council requested that the UN Secretary-General ‘devise urgently’ an action plan for a comprehensive monitoring and reporting mechanism that could provide accurate and timely information on grave violations against children in armed conflicts. The resolution also called on listed parties to prepare concrete ‘action plans to halt the recruitment and use of children in violation of the international obligations applicable to them’. UN Security Council 2004.
- 88.
This reflected a practice that began that year to name the military entity rather than the concerned State or the relevant ANSA.
- 89.
UN Secretary-General 2005, p 38.
- 90.
For the most recent report, see UN Secretary-General 2018, p 39.
- 91.
Geneva Call (2013) The KNU/KNLA commits to the protection of children and the prohibition of conflict-related sexual and gender-based violence, Geneva Call, 24 July 2013. https://genevacall.org/knuknla-commits-protection-children-prohibition-conflict-related-sexual-gender-based-violence/. Accessed 3 December 2018.
- 92.
This information was conveyed by the KNU on several occasions to Geneva Call.
- 93.
Child Soldiers International 2013, p 30, fn 164.
- 94.
Geneva Call n.d. Deed of Commitment for the Protection of Children from the Effects of Armed Conflict, Article 4.
- 95.
Geneva Call (2015) Burma/Myanmar: 40 high-ranking officers from the Karen National Liberation Army are trained on child protection, Geneva Call, 25 November 2015. https://genevacall.org/burmamyanmar-40-high-ranking-officers-karen-national-liberation-army-trained-child-protection/. Accessed 3 December 2018.
- 96.
Geneva Call (2016) Burma/Myanmar: update of Geneva Call’s latest activities on gender equality and the prevention of sexual violence, Geneva Call, 21 June 2016. https://genevacall.org/burmamyanmar-update-geneva-calls-latest-activities-gender-equality-prevention-sexual-violence/. Accessed 3 December 2018.
- 97.
Geneva Call (2015) Burma/Myanmar: 40 high-ranking officers from the Karen National Liberation Army are trained on child protection, Geneva Call, 25 November 2015. https://genevacall.org/burmamyanmar-40-high-ranking-officers-karen-national-liberation-army-trained-child-protection/. Accessed 3 December 2018.
- 98.
Information on file with the author.
- 99.
Bangerter 2015, p 113.
- 100.
The term Mai-Mai (Mayi-Mayi) refers to a range of ethnically defined ANSAs that usually claim autochthony and have operated in the DRC since the 1960s on all sides of the political spectrum. The term means ‘water’ and relates to supposed magical powers that protect fighters from enemy bullets. Mampilly 2011, p 180, fn 13.
- 101.
For the most recent report, see UN Secretary-General 2018, p 39.
- 102.
UN Security Council 2014, p 35.
- 103.
See Coalition to Stop the Use of Child Soldiers 2010, p 9.
- 104.
Information on file with the author.
- 105.
Richards 2014, p 317.
- 106.
APCLS 2015, Article 6.
- 107.
Information on file with the author.
- 108.
Ibid.
- 109.
See in this sense, US Supreme Court, Holder v. Humanitarian Law Project et al., 561 U.S. 1 (2010).
- 110.
At the initiative of Geneva Call, some of them, such as the Philippines, Senegal, and Sudan, have even agreed to meet opposing ANSAs to discuss humanitarian issues. Others have funded Geneva Call to engage with ANSAs included on their ‘terrorist lists’. Bongard 2013.
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Heffes, E. (2020). Non-State Actors Engaging Non-State Actors: The Experience of Geneva Call in NIACs. 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_15
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