How can international humanitarian law bind non-state actors?
Interstate armed conflicts are rare nowadays but intrastate armed conflicts have been on the rise in recent years. Intrastate conflicts often involve non-state actors and pose an important question for the international community – how can non-government parties be bound under the international humanitarian law (“IHL”)?
IHL applies to all the signatory States of the Geneva Conventions of 1949 and their Additional Protocols of 1977 but it also binds non-state actors: private citizens, armed groups, national liberation movements, and international organizations. It has been established that since IHL provides rights and special protections to private citizens in conflict, it also confers obligations, as demonstrated by the Nuremberg trials, international tribunals, or recent ICC decision to sentence Congolese warlord Thomas Lubanga to 14 years for using child soldiers and forcing them to commit atrocities. Several instruments also create IHL obligations on part of non-government armed or rebel groups – Common Article 3 of the Geneva Conventions, the Second Additional Protocol of 1977, and Article 8 paragraph 2 of the Statue of the International Criminal Court (“ICC”), whereas the First Additional Protocol applies to national liberation movements. And while there is no specific legal provision that binds international organizations under international humanitarian law, the ICC specifically stated that “an international organization is a subject of international law and, as such, is bound by all the obligations deriving from the general rules of international law.”
It is important to remember though that IHL does not apply to any instances of violence but only those non-international armed conflicts that satisfy organization requirements and reach certain level of intensity, and possibly duration. Mere riots, isolated acts of violence, protests, and single acts of terrorism do not constitute an armed conflict under international humanitarian law. Despite difficulties in proper identification of armed conflicts under IHL, currently there is no single legal body that provides armed conflict designation; rather the UN Security Council and the General Assembly call for application of IHL in certain conflict situations, implying existence of an armed conflict under IHL. Perhaps, the international community could benefit from a clearer statutory definition of an armed conflict or expanding IHL applicability to any instances of violence motivated by a specific goal.