There is no internationally accepted definition of non-state armed groups in international treaties. This term refers to a non-State party involved in an international or non-international armed conflict. Humanitarian law uses the term “armed forces” to refer to and define combatants fighting in a state involved in the conflict. International humanitarian law does not grant special status to members of non-State armed groups in situations of non-international conflict. Unlike members of national liberation movements in international armed conflicts, members of non-State armed groups operating in non-international armed conflicts cannot enjoy prisoner of war status if captured (GCIII Art.4). It is generally accepted that non-State armed groups are also bound by certain obligations under international human rights law in situations of internal unrest, tension or armed conflict. Despite these elements of definition, non-State armed groups vary considerably depending on the context in which they operate. These differences include their degree of centralization and organization, their ability to train members, exercise territorial control or maintain close relations with the civilian population. Other areas of law applicable to NSAs may gradually prove to be of similar relevance. These may include the regulation of the transfer and development of arms, international institutional law, international environmental law and law relating to the international responsibility of collective units that are not States (see, for example, here, here, here, here and here). It is also important to distinguish between non-State armed groups and private military companies that intervene not ex officio but at the request of a party to the conflict. As noted above, Additional Protocol II does not grant combatant status to members of non-State armed groups. For this reason, these groups have no legal incentive to distance themselves from the population and carry their weapons openly during the fight.
They therefore belong to the category provided for in Article 13(3) of Additional Protocol II concerning civilians taking a direct part in hostilities. As such, they lose their protection as civilians during their participation in hostilities. This means that they can be attacked and captured during this time. They may also be arrested, interrogated, tried and sentenced by national courts for their participation in hostilities. The International Criminal Tribunals and the International Criminal Court have the power to bring to justice members of non-State armed groups for war crimes, crimes against humanity and genocide, provided that all the criteria for jurisdiction are met. The criteria set out in these decisions are mainly related to the determination of the individual criminal responsibility of members of non-State armed groups for war crimes. They therefore concern international criminal law rather than humanitarian law. However, they should not be used to make the implementation of obligations under Additional Protocol II subject to additional conditions at the level of the Organization of Non-State Armed Groups. The content of the obligations imposed on members of non-State armed groups depends on the characterization of the conflict, the degree of organization of the group and its ability to exercise territorial control. Non-State armed groups must respect at least the guarantees provided for in article 3.
While its degree of organization and its ability to exercise territorial control are sufficient to enable it to comply with international humanitarian law, it must also comply with the provisions of Additional Protocol II. These obligations arise from the fact that non-State armed groups continue to be governed by the law of the State in which they operate. National law continues to apply to those parts of the territory and to the population under the supervision of non-State armed groups that de facto perform administrative functions in respect of that population. In these situations, there is no reciprocity and the State remains bound by its obligations to a non-State which, by its very nature, cannot sign the agreements. As parties to the conflict, non-State armed groups must comply with certain obligations under international humanitarian law. The purpose of these criteria is also to recall that a non-state armed group conducting military operations has organizational obligations, which include codes of conduct and respect for humanitarian law (IHL) in its own hostilities. Indeed, in this type of conflict, Additional Protocol II obliges all parties to the conflict, whether State or non-State, to respect the rules of international humanitarian law. However, States and non-State armed groups do not have the same capabilities and therefore the same level of responsibility for compliance with international humanitarian law.
For example, detention rules depend on the territorial control capabilities of non-state armed groups. The criteria set out in Additional Protocol II stipulate that a non-State armed group must respect a certain level of organization. The criminal responsibility of commanders is assessed according to the degree of organization and control of these groups and their territorial control capabilities. However, these criteria do not alter the classification of the non-international armed conflict and the related obligations of the State concerned. If the degree of organization of the non-State armed group is called into question, the State party is not released from its obligations to comply with article 3 jointly and Additional Protocol II in the context of its own military activities. This is illustrated by the conviction of Thomas Lubanga Dyilo, leader of a Congolese non-state armed group (UPC), by the International Criminal Court on 14 March 2012 (Prosecutor against Thomas Lubanga Dyilo, ICC-01/04-01/06, judgment of 10 July 2012). Another example is the international arrest warrant issued in 2006 and renewed in 2012 by the ICC against Bosco Ntaganga, another leader of a Congolese non-state armed group operating in North Kivu. Non-state armed groups are vulnerable because national laws criminalize them, but they must receive international guarantees. In fact, they are often not contrary to humanitarian rules as long as they do not constitute an obstacle or weaken the effectiveness of military operations. Their tendency to respect or violate IHL is linked to their temptation to weaken their adversary by the most effective and least risky means, even if this is not permitted by law. Humanitarian law and international criminal law aim to strike a balance between the necessary international responsibility of these armed groups and the refusal of States to grant these groups a certain status or legitimacy at the national level. Proceedings of the Bruges Colloquium.
Relevance of international humanitarian law to non-State actors, 25.-26. October 2002 Common Article 3 of the Geneva Conventions (Common Article 3), which applies to non-international armed conflicts, establishes binding obligations and minimum guarantees for parties to the conflict, regardless of their nature. Common Article 3 does not lay down specific requirements as to the degree of organisation of the non-State parties to the conflict. This is not a shortcoming, but a decision to avoid delaying the application of common Article 3 because of the debates and controversies on this issue. For this reason, common article 3 encourages all parties to the conflict, whether State or not, to bring into force, in whole or in part, the provisions of humanitarian law by means of special agreements. The application of the provisions of common article 3 does not affect the legal status of the Parties to the conflict, which means that it does not imply mutual recognition between the State Party and the State not party to the conflict. Additional Protocol II complements the obligations and safeguards of non-State armed groups as parties to non-international armed conflicts. In addition, international judicial and judicial bodies – which can also be considered NSAs – play a crucial role in how other actors (including states) currently understand, implement and develop the provisions of international humanitarian law.
Although universal and regional human rights bodies, international and hybrid tribunals and the International Court of Justice were all established by States, they are different from them and fulfil their mandates with autonomy and independence. It should therefore not be forgotten that each of these bodies establishes its own relationship with IHL in its respective institutional, legal and historical context.
