The new wars and the crisis of compliance with the law of armed conflict by non-state actors.

• Author: Bassiouni, M. Cherif
• Position: Symposium on Redefining International Criminal Law

1. INTRODUCTION II. INTERNATIONAL HUMANITARIAN LAW AND THE REGULATIONS OF ARMED CONFLICTS III. CHARACTERISTICS OF NON-INTERNATIONAL AND INTERNAL CONFLICTS A. LEGAL CHARACTERIZATIONS B. CONTEXT SPECIFIC DIFFERENTIATIONS OF LEGAL NORMS APPLICABLE TO NON-STATE ACTORS 1. Wars of National Liberation and Regime Change 2. Conflicts of an International Character Involving Non-State Actors on the Side of State Actors 3. Non-State Actors in Non-International Conflicts 4. Doctrinal and Jurisprudential Efforts Addressing Overlaps IV. THE CULTURE OF WAR IN NON-INTERNATIONAL AND PURELY INTERNAL CONFLICTS: ITS METHODS, MEANS, AND THE IMPACT ON COMPLIANCE AND NON-COMPLIANCE A. THE NEW CULTURE OF WAR B. THE MILITARY STRUCTURE AND THE STRATEGY OF VIOLENCE AND TERROR VIOLENCE BY NON-STATE ACTORS C. NON-STATE ACTORS AS STATE SURROGATES D. FINANCING, FUNDING AND ARMING OF NON-STATE ACTORS E. THE POLITICS OF HATE V. FACTORS ENHANCING AND DETRACTING FROM COMPLIANCE WITH IHL A. CLAIMS OF LEGITIMACY B. ASYMMETRY OF FORCES C. POSITIVE INDUCEMENT FACTORS D. VALUES AND BEHAVIOR E. CRIMINOLOGICAL FACTORS-- COMPLIANCE/DETERRENCE ISSUES IN IHL F. POLITICAL CONSIDERATIONS: THE POLITICAL QUICK FIX IN ENDING CONFLICTS VI. CONCLUSIONS AND RECOMMENDATIONS I. INTRODUCTION

   Since the end of World War II, an estimated 250 conflicts have taken place on almost every continent in the world, resulting in estimated casualties ranging from seventy million to 170 million, most of whom were non-combatants, (1) Almost no region of the world has been spared the human and material devastation resulting from violations of International Humanitarian Law (IHL) (2) by state as well as non-state actors, notwithstanding the fact that such violations are contrary to the professed fundamental values and beliefs of most of those engaged in these conflicts. (3)

   A number of research organizations, including the Carnegie Endowment for International Peace, SIPRI, PIOOM, International Human Rights Law Institute, and others, have attempted to identify the number of conflicts of a non-international character and the level of victimization that has resulted in these conflicts. (4) These research projects, however, seldom distinguish between groups of non-state actors who engage in armed conflicts that are legally characterized as international, non-international, or purely internal armed conflicts. (5) A number of legal consequences derive from these characterizations that impact on compliance with the norms of IHL, and in turn affect the levels of victimization occurring in these conflicts.

   After World War II, the culture of war changed and a new generation of means and methods of warfare emerged, which extends until now. This development raises questions about the continued validity of classic assumptions underlying what is interchangeably called the Law of Armed Conflict, the Laws of War, and International Humanitarian Law. The invalidation by the new wars of the assumptions raises the question of whether these "laws" are still relevant. (6)

   Three factors command consideration with respect to compliance by non-state actors. The first is that non-state actors in conflicts of a non-international or purely internal character are almost always in an asymmetrical relationship to the strength and resources of the governments that they oppose. This asymmetry puts them at a military disadvantage that precludes them from fighting a significantly more powerful opponent with the same limitations on means and methods of warfare. In fact, this asymmetry compels them to resort to unconventional and unlawful means and methods of warfare as the only way to redress the military and economic imbalance they face. Without sufficient incentives for non-state actors to comply with IHL, the asymmetry of power mentioned above necessarily leads to non-compliance. The second factor is that unlike conventional armies, non-state actors operate as militias or bands with little or no military training, little or no command and control structure, and little or no internal discipline or other system of social control likely to enhance compliance. The third factor is that non-state actors have no expectation of accountability for their non-compliance. Combined, all three factors, coupled with whatever other contextual political factors that may exist in a given conflict, make voluntary compliance by non-state actors aleatory. (7)

   Non-international and internal conflicts since World War II evidence the participation of a wide range of groups that had not historically participated in armed conflicts, (8) the latter having been the monopoly of states (9) and thus essentially involving conventional armies. (10)

   The term non-state actor is applied to non-governmental groups who directly or indirectly engage in support of non-governmental combatants in non-international and purely internal conflicts. These groups take a variety of forms, including:

   (1) Regularly constituted groups of combatants with a military command structure and a political structure; (11)

   (2) Non-regularly constituted groups of combatants with or without a command structure and with or without a political hierarchical structure;

   (3) Spontaneously gathered groups who engage in combat or who engage in sporadic acts of collective violence with or without a command structure and with or without political leadership;

   (4) Mercenaries acting as an autonomous group or as part of other groups of combatants; and

   (5) Expatriate volunteers who engage for a period of time in combat or in support of combat operations, either as separate units or as part of duly constituted or ad hoc units. (12)

   These groups also include dual-purpose groups that engage in combat, as well as pursue other activities relating to their cause. (13) This includes: (1) members of political parties who occasionally engage in combat and sometimes in acts of violence, which constitute violations of IHL; and (2) members of organized crime groups or groups pursuing criminal purposes while active in armed conflicts and commit violations of IHL.

   The major issues discussed in this Article, although not presented in the following order due to significant overlap, are:

   * Whether the new culture of war and its means and methods in conflicts of a non-international character and purely internal character, necessarily engender greater violations of IHL, and thus whether IHL is relevant to this new culture of war and can be assumed to induce compliance with its norms;

   * Whether the asymmetry of power between non-state and state actors engaged in conflicts of a non-international or purely internal character is an insurmountable impediment to compliance with IHL by non-state actors;

   * Whether there is sufficient experiential data arising out of the conflicts that have taken place since World War II to identify and assess the factors that enhance or detract from IHL compliance by non-state actors; (14)

   * To what extent do double standards by states contribute to the reduction of compliance by non-state actors;

   * The degree to which enforcement of IHL norms constitutes deterrence and thus positively impacts on individual and collective compliance, and mutatis mutandis, whether non-enforcement engenders enhanced noncompliance;

   * Whether among state and non-state actors there is a correlation between actual conduct in the field and their harmful outcomes on the one hand, and proclaimed values and declared adherence to the Rule of Law on the other; and

   * Whether the multiplicity of applicable legal regimes, their confusing overlaps, their normative gaps, and their rigid legal characterizations contribute to both non-compliance and non-enforcement. (15)

   The above-mentioned factors and others discussed in this article have a significant beating on the non-compliance with IHL by non-state actors in conflicts of a non-international or purely internal character; and whether non-compliance has reached a crisis proportion that requires a reexamination of the validity of the assumptions underlying compliance expectations. The proposition discussed below is how to reduce the harmful human consequences produced during these conflicts by increasing the levels of individual and collective compliance with IHL. (16) This requires assessing the new culture of war and its means and methods, appraising the factors leading to or detracting from compliance, and reviewing the applicable law and its enforcement, particularly as regards the dual standards employed by major states whereby their non-compliance with IHL becomes the de facto accepted exception. (17)

   Although empirical data about factors concerning individual and collective compliance with IHL by non-state actors is limited, anecdotal data is available to illustrate the issues raised herein. In this area, past experience is unfortunately more than merely illustrative, it is shockingly telling.

   It should be noted that there are also a number of major gaps in ICL with respect to non-state actors. For example, both the Genocide Convention and the Convention Against Torture apply to state actors. Crimes against humanity has not yet been embodied in a separate international convention and, under customary international law, applies to state actors, even though it would be clearly desirable to also have it apply to non-state actors. There is therefore much need to develop ICL and to fill the gaps contained therein with respect to non-state actors as there is with respect to IHL. (18)

   There is also the need to clarify the applicability and enforcement mechanisms of IHRL in connection with non-state actors.

2. INTERNATIONAL HUMANITARIAN LAW AND THE REGULATION OF ARMED CONFLICTS

   IHL is the body of norms that regulates the conduct of those who are involved in armed conflicts. (19) It includes the prohibition of certain ways and means of warfare and the prohibition of certain weapons. More importantly, it is designed to protect certain categories of persons...