Challenges of compliance of non-state armed groups: one-way obligations?

As we write, non-state armed groups (‘NSAGs’, also variously described as‘insurgents’, ‘rebels’, ‘insurrectionists’, etc) are mainly seen as law-takers rather than as law-makers, and thus as objects rather than subjects of international law: they are required to comply with international humanitarian law (IHL) without having had the opportunity to participate in the making of the law. This lack of participation has translated into an imposition of duties on NSAGs which is not matched by the conferral of rights. NSAG members who take part in (non-international) armed conflicts are not entitled to combatant or prisoner-of-war status, and can be punished for their mere participation in hostilities, whether or not they comply with IHL. Therefore, at first sight, compliance with IHL yields few advantages for NSAGs. To remedy this imbalance in the structure of the law of non-international armed conflict, it is key that other incentives for compliance are offered to NSAGs, with full respect for the diversity and motivation of the various NSAGs. The most potent incentive for compliance with IHL is perhaps the promise of a broader acceptance of the legitimacy of their struggle, both domestically and internationally. To obtain this legitimacy, NSAGs may want to be seen to comply with IHL by formally pledging adherence to IHL in various legal instruments. These pledges are performative speech acts in an Austinian sense: they do not simply describe a reality, but by being uttered they transform it. By formally pledging to abide by it, they exhibit an enhanced willingness and expectation that compliance will indeed be forthcoming.
There are a number of legal instruments through which NSAGs can give their actual consent to be bound. All of them—unilateral declarations, codes of conduct, special (bilateral) agreements and multilateral agreements—have their respective advantages and drawbacks. The most important drawback, as with any declaration or agreement, is that a declaration or agreement adopted by an NSAG may not be worth much if it is not backed up by credible compliance monitoring or sanctions. Monitoring and enforcement by independent and disinterested agencies may indeed be considered as the backbone of a genuine ‘rule of law’.
Interestingly, some innovating initiatives have recently been developed to monitor IHL compliance by NSAGs. Notably the Security Council’s Monitoring and Reporting Mechanism, which monitors the IHL record of NSAGs in respect of children in armed conflict, and the NGO Geneva Call’s monitoring of NSAGs compliance with the ‘Deed of Commitment’ deserve mention in this regard. Monitoring may result in naming and shaming recalcitrant NSAGs, but in case of persistent or gross violations, sanctions that bite may have to be contemplated. NSAGs’ and their members’ assets might be frozen, their travel may be restricted or they may be criminally prosecuted, possibly even by courts set up by the NSAG itself.

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