Role of Non state Actors in Armed Conflicts

According to the Preamble of the Universal Declaration of Human Rights, every individual and every
organ of society…shall strive… to promote respect for the rights and freedoms and by progressive
measures, national and international, to secure the universal and effective recognition and observance1
of the human rights. This milestone document advocates for the universal adoption and
commitment of both states and non-state actors to adopt, adhere and, and actively contribute to
the realization of human rights.

The concept of Non-State actors (NSAs) as an object of International law is relatively new in
tradition International Law. According to Andrew Clapham, the concept of non-state actors is
generally understood as including any entity that is not actually a state, often used to refer to
armed groups, terrorists, civil society, religious groups or corporations.2 The Cotonou Agreement
recognizes NSAs such as private sector, economic and social partners, trade union organizations
and civil Society in all its forms as the actors of cooperation.3

Non-state actors include organizations and individuals that are not affiliated with, directed by, or
funded through the government.4 It includes private financial institutions, Non-Governmental
Organizations (NGOs), Corporations, and Media Organizations, Religious Groups as well as
armed resistance groups and rebel groups with political objectives.

An entity must possess rights as well as obligations within a legal system in order to have legal
personality.5 NSAs such as, NGOs, Corporations, Private Financial Institutions, etc. possess
legal personality however; others illegitimate Non-State Armed Groups (NSAGs) including rebel
groups are deprived of legal personality. From a legal perspective, International laws and
conventions are state centric and NSAs are not party to it. This implies negative effect in the
application and execution of IHL, although the parties of armed conflicts are subject to it.

1
Universal Declaration of Human Rights, adopted on 10 December 1948, Preamble
2
Mohammad H. Zarei & Azar Safari, Rethinking International Law and Justice, 1 st edition, Ashgate
Publishing Limited available at https://www.culturaldiplomacy.org/academy/content/pdf/participant-papers/2014-
04 lhrs/Dr_Zarei_and_Azar_Safari_-_The_Status_of_Non State_Actors_under_the_International_Rule_of_Law-
_A_Search_for_Global_Justice.pdf accessed on 25 November 2023
3
European Commission, Directorate-General for International Cooperation and Development, The Cotonou
agreement, 23 June 2000, Cotonou available at
.https://www.eods.eu/library/EU_Cotonou%20Agreement_2000_EN.pdf
4
ESCR-Net, available at https://www.escr-net.org/resources/non-state-
actors#:~:text=Non%2Dstate%20actors%20include%20organizations,paramilitary%20and%20armed%20resistance
%20groups accessed on 25 November 2023
5
(n 2) accessed on 25 November 2023

1
Additional Protocol II to the 1949 Geneva Conventions (Additional Protocol II) defines Non
State Armed Groups as “armed forces and dissident armed forces or other organized armed
groups.” In order to fall under the criteria of NSAGs, there ought to be (i) responsible command,
(ii) exercise such control over a part of its territory as to enable them to carry out sustained and
concerted military operations and to implement this Protocol.6 These conditions distinguish
NSAGs from internal disturbances such as riots, isolated acts of violence, etc. as not being an
armed conflict.

A non-state armed group that carries out military operations in armed conflict areas has
obligations of organization, which include rules of conduct and respect for humanitarian law in
its own actions in combat.7 The accountability of non-state actors matters due to many reasons.
On one hand, it is increasingly recognized that these actors influence states through normative
pressures. On the other hand, non-state actors are often seen as critical agents who represent the
public interest in multilateral affairs.8

There is no consensus on whether NSAGs contribute to the formation of customary international

humanitarian law (IHL)9 however all actors; state or non- state must comply with IHL. During
Armed conflicts, the state and Non state parties must adhere to and comply with International
Humanitarian Laws. Article 4(2) of the Additional Protocol II mentions “Fundamental
Guarantees”. All persons whether they take part in such hostilities, or not are entitled to be
treated humanely. The acts such as corporeal punishments, degrading treatment, mutilation, rape,
any form of indecent assault, slavery, pillage10, taking hostages, torture11 etc. shall be prohibited
in armed conflicts. Likewise, as per Article 4(3c) children who have not attained the age of
fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in
hostilities. Additional Protocol II compels all parties to an armed conflict; state or non-state to
adhere to IHL however, since both parties, state and non-state do not (may not) possess equal
resources, they do not share equal responsibilities.

In resolution 1540 (2004), the Security Council decided that all States shall refrain from
providing any form of support to non-State actors that attempt to develop, acquire, manufacture,

6
International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August
1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977
available at https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.35_AP-II-EN.pdf
7
Medecins Sans Frontieres , available at https://guide-humanitarian-law.org/content/article/3/non-state-armed-
groups/ accessed on 26 November 2023
8
Armed Non-State Actors: Current Trends & Future Challenges DCAF & Geneva Call, available at
https://www.files.ethz.ch/isn/144858/ANSA_Final.pdf
9
Ibid
10
Protocol Additional II (n 6) https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.35_AP-II-
EN.pdf
11
International Committee of the Red Cross (ICRC), Geneva Convention for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), 12 August 1949, Article 3 available
at https://www.icrc.org/en/doc/assets/files/publications/icrc-002-0173.pdf

2
possess, transport, transfer or use nuclear, chemical or biological weapons and their means of
delivery, in particular for terrorist purposes.12

As parties to the conflict, non-state armed groups must respect certain obligations in regard to
international humanitarian law through means of special agreement. This is encouraged in
Common Article 3 of the Geneva Conventions. According to Article 76 of the Additional
Protocol II, women shall be protected against rape and forced prostitution. Article 77 guarantees
the protection of children and armed non state groups shall refrain from recruiting children below
the age of 15. ANSGs are obligated to fulfill the obligations of IHL not to be a subject of war
crimes that fall under the jurisdiction of International Criminal Law.

The statuses of NSAGs depend upon the legal system. Under international humanitarian law,
members of non-state armed groups (paradoxically) belong to the category of civilians. NSAGs
lose most of the protection attached to the status of citizen, especially the protection against
direct attack while they directly participate in hostilities. However, this does not deprive them
from certain protections provided by IHL for persons hors de combat.13

In 2010, the ICRC published the Interpretive Guidance on the Notion of Direct Participation in
Hostilities under International Humanitarian Law. This states that, the principle of distinction in
international armed conflict, all persons who are neither members of the armed forces of a party
to the conflict nor participants are civilians and, therefore, they are entitled to protection against
direct attack unless they take a direct part in hostilities.14 The obligations of Non state armed
groups arise from the territory where they operate, hence citizens are especially protected in
armed conflicts.

Non-state actors excluding Non-State Armed Groups play an important role in Armed Conflict
zones. NSAs such as INGOs and NGOs for example, acts as a watch dog in order to checks the
actions of the government that are contrary to law and the interests of the people. Likewise,
Amnesty International, Human Rights watch etc. can play an important role to guarantee the
execution of Human rights in conflict zones. Since its establishment Amnesty International has
conducted on- site examinations of the violations of human rights in armed conflict areas. Such
NSAs are continuously dedicated to interview witnesses, consult local organizations and, collect
data so as to protect the rights, interest and liberties of civilians in an armed conflict.

12
United Nations Security Council, Resolution 1540 (2004), Non-Proliferation of Weapons of Mass Destruction, 28
April 2004 available at
https://disarmament.unoda.org/wmd/sc1540/#:~:text=In%20resolution%201540%20(2004)%2C,delivery%2C%20in
%20particular%20for%20terrorist
13
Medecins Sans Frontieres , (n 7)
14
International Committee of the Red Cross, Interpretative Guidance on the Notion of Direct Participation in
Hostilities under International Humanitarian law, p. 20, available at
https://www.icrc.org/en/doc/assets/files/other/icrc-002-0990.pdf

3
In most conflict areas, it has been reported that fighting forces use sexual violence against
women and children that inflict physical and psychological damage to them. Various NSAs
including NGOs and INGOs have documented war crimes, crimes against humanity, genocide,
etc. which has aided the flow of information, humanitarian aid and justice to victims of armed
conflict.

Generally, Religious Groups are also important non state actors however Taliban and Hamas are
examples of violent religious groups. (International Recognition is an important element of
Sovereignty. Since, Taliban is not recognized as a state by the United Nations, it shall be deemed
as a non-state actor in this essay.) Violent non-state actors, such as Taliban with political
objective are noted to ignore request of amnesty and obligations of IHL.

In order to address the needs of the vulnerable population, provide humanitarian assistance,
secure the corporation of NSAGs and, ensure that the flow of humanitarian aid is undisturbed,
non-state actors such as NGOs play an important role in armed conflicts.

NGOs attempt to mitigate the effects of conflict by providing relief, helping to develop a
dialogue among belligerents, and setting in motion social and economic reconstruction.15 Human
rights watch has been working effectively in order to bring attention to under-reported crises,
highlight the plight of marginalized people, advance rights-respecting legal norms, and access to
justice in order to protect and promote human rights.16

The International Committee of the Red Cross was established under Article 60 of the Swiss
Civil Code. In general, it is considered to possess legal personality. According to Article 2 of its
statute, the ICRC enjoys a status equivalent to that of an international organization and has
international legal personality in carrying out its work.17 Its main mission is to protect the lives
and dignity of victims of armed conflict and to ensure the protection of and assistance to military
and civilian victims in armed conflict. Non state actors play an important role to address the
needs of vulnerable and displaced populations and act as relief agencies.

NGOs such as the Community of San Egidio have facilitated negotiations between warring
parties. The Internet community is an emerging actor and has played an important role in the
reunification of families. These actors have increased access to areas inaccessible to official
actors and function without the narrow foreign policy constraints of state institutions. They can
talk to several parties at once without losing credibility. For example, in recent years, the
International Committee of the Red Cross has created a website to re-establish connection

15
Foreign Affairs, available at https://www.foreignaffairs.com/reviews/capsule-review/2007-01-01/aiding-peace-
role-ngos-armed-conflict-bioethics-and-armed accessed on 27 November 2023
16
Human Rights Watch , available at https://www.hrw.org/topic/crisis-and-
conflict#:~:text=The%20Crisis%20and%20Conflict%20division,migration%20that%20can%20drive%20conflict
accessed on 27 November 2023
17
International Committee of the Red Cross, available at https://www.icrc.org/en/document/statutes-international-
committee-red-cross-0 accessed on 27 November 2023

4
between members of a family. This has been successful in former Yugoslavia. The lead taken by
non-state actors in the establishment of the International Criminal Court (ICC) and the adoption
of the Ottawa Treaty on the prohibition of anti-personnel mines are exhibit the important role of
non-state actors in peace building in armed conflict zones.18

Non-state actors such as Multinational corporations, especially those dealing with fuel, oil,
timber, etc. benefit tremendously from wars and conflicts and are said to play a role in
prolonging conflict. In 2022, Chevron, ExxonMobil, Shell, BP and Total Energies made $134
billion in excess profits, predominantly due to the effects of the war in Ukraine.

Despite the critical role of armed groups in internal conflicts, human rights law is de jure
applicable only to state entities, and IHL offers only general principles of protection. 19 Armed
groups are rarely considered the stakeholders of humanitarian law and concerns. The practical
illustration to this was observed on Rome Conference on the Establishment of the International
Criminal Court where in formal presence of delegations from more than 130 states and many
Non-state actors including NGOs and INGOs, there was no representation of armed groups.

In the International arena, governments have lost their capacity to bring non-state criminals to
trial, or have relinquished this authority as part of a peace process.20 NSAs such as NGOs and
INGOs play an important role in conflict zones by protecting the interests, rights and liberties of
vulnerable groups and individuals. Likewise, ANSGs play a crucial role in conflict zones
however, in execution; most armed groups are unable to fulfill the obligations conferred to them
through IHL due to either inadequate resources or lack of willingness to adhere to such
obligations. This is mainly because armed groups are outside the legal framework of the state.
However, the ICRC and other humanitarian organizations, engaging with various armed groups
has demonstrated the potential benefits of such a dialogue with such non state armed groups for
the civilian population.

Sambriddhi Aryal

First Year, B.A. LL.B.

2109 Words

18
Claude Bruderlein, The role of non-state actors in building human security, Geneva, May 2000, p. 3 available p. 3
https://www.files.ethz.ch/isn/7284/doc_7302_290_en.pdf
19
Ibid
20
Ibid, p. 7