Posted by hpcr on March 22, 2012  |   Comment  |   Subscribe

[Editor's Note: In its efforts to enrich professional dialogue on contemporary challenges of humanitarian law and policy, the Program on Humanitarian Policy and Conflict Research (HPCR) at Harvard University invites experts in international humanitarian law, humanitarian action, and associated fields to contribute their insights to relevant discussions. HPCR is pleased to welcome the contribution below from Dr. Marco Sassòli, Professor in the Department of Public International Law and International Organizations, University of Geneva. Professor Sassòli will be one of the expert panelists at the April 5, 2012 Live Web Seminar co-hosted by HPCR and the International Review of the Red Cross on "Understanding Armed Groups and the Applicable Law."]

By Marco Sassòli

The questions I raise in this blog arose both during my teaching, research, and drafting of publications on IHL, and out of my practical experience working for 13 years for the International Committee of the Red Cross (ICRC) and chairing the board of Geneva Call, an NGO engaging armed groups to respect humanitarian norms. For the following reasons, in the discussion with Yuval Shany published in the issue of the International Review of the Red Cross on understanding armed groups, I take the position that the principle of equality of belligerents in non-international armed conflicts limits the impact of international humanitarian law (IHL) on the conduct of non-state armed groups and their compliance with key provisions. We should, therefore, consider abandoning this principle, or at least modifying it, in non-international armed conflicts.

As with all law, IHL has to take into account the social reality it seeks to govern. Non-international armed conflicts are by definition fought as much by armed groups as by governmental armed forces. If the law takes the needs, difficulties, and aspirations of only the latter into account, it will be less realistic and effective. In my view, for all existing, claimed, and newly suggested rules of IHL, or whenever we interpret IHL, we have therefore to assess whether an armed group with the necessary will is able to comply with the identified rule, without necessarily losing the conflict. If this is not the case, the armed group will likely not comply with the rule, and the impression, by the armed group, that IHL is not realistic will undermine the credibility and protective effect of other rules, including rules that an armed group is able to comply with.

At least three examples raise doubts in this respect. First, the current tendency of international criminal tribunals, the ICRC, and scholars to bring IHL of non-international armed conflicts closer to that of international armed conflicts, mainly via alleged customary rules, may have the negative side effect that armed groups are claimed to be bound by rules that only States can comply with. Second, the increasing integration of human rights standards into IHL may lead to a similar result. Third, the combination of a minimum age of 18 to participate in hostilities and a broad concept of (prohibited) involvement of children with armed groups results in requirements that largely make it impossible for members of armed groups to remain together with their families and to be supported by the whole population.

These and other examples may lead to the conclusion that IHL should apply to armed groups according to a sliding scale of obligations that will increase according to the intensity of violence and the degree of organization of the group. Such a sliding scale of obligations would not be revolutionary. The threshold of application of Additional Protocol II, which is much higher than that of Article 3 common to the Conventions, already results in such a sliding scale. AP II’s relatively higher threshold is perhaps realistic for armed groups, because only those groups that control territory (which is one of the conditions for the Protocol, but not for Common Article 3, to apply) may be able to respect certain rules of the Protocol.

Such a sliding scale of obligations will in turn lead to the question of whether the principle of equality of belligerents under IHL is appropriate in non-international armed conflicts (because it is not objectively needed for governmental forces and is only due to the (in)ability of the armed group). On the one hand, equality of belligerents is a cardinal principle of international humanitarian law, and there are good theoretical and even more compelling practical reasons to apply it equally in non-international armed conflicts, however morally justified a conflict may be, as in rebellions against a dictatorial government, the battle between a democratic government and a terrorist group, or efforts to combat an armed group seeking to loot natural resources or engaged in drug trafficking. The victims of the conflict on both sides need the same protection. On the other hand, the principle of equality of belligerents combined with the need to keep IHL rules realistic for armed groups would lead to the result that well-organized governmental forces would be bound by more rudimentary IHL rules if their enemy is not well organized, even though the governmental forces could perfectly comply with more demanding rules. This result is, however, unsatisfactory only when one looks at IHL alone. If one includes international human rights law (IHRL) into the picture — given that States are bound by IHRL while armed groups are not (or, according to more progressive theories, at least not bound to the same extent) — war victims would nevertheless benefit from full, if not better, protection from governmental forces, because when IHL does not apply as lex specialis, IHRL fully applies.

There is another way out of the finding that some developed rules of IHL may be unrealistic for armed groups to comply with: abandon the principle of equality of belligerents and require from the government full respect of customary and conventional rules of IHL while requiring from their enemies respect according only to their objective ability to respect certain rules. The better organized an armed group is and the more stable control the group has over territory, the more similar the applicable rules would be to the full international humanitarian law of international armed conflicts. In my debate with Yuval Shany published in the latest issue of the International Review of the Red Cross, I defend this position.